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THE   ART   OF   CROSS-EXAMINATION 


j[^§^ 


THE  ART  OF 
CROSS-EXAMINATION 


BY 

FRANCIS    L.   WELLMAN 

OF  THE   NEW   YORK   BAR 


WITH  THE  CROSS-EXAMINATIONS  OF  IMPORTANT 
WITNESSES  IN  SOME  CELEBRATED  CASES 


THE   MACMILLAN    COMPANY 

LONDON :  MACMILLAN  &  CO.,  Ltd. 
1904 

All  rights  reserved 


Copyright,  1903, 
By  the  MACMILLAN  COMPANY. 


Set  up,  electrotyped,  and  published  December,  1903.      Reprinted 
January,  1904. 


Nortoood  Press 
S.  Gushing  ©"  Co.  —  Berwick  Sf  Smith  Co. 
Norivood,  Mass.,   U.S.A. 


^0  mg  ^ong 
RODERIC   AND   ALLEN 

WHO   HAVE   EXPRESSED  THEIR   INTENTION 
TO  ENTER  THE   LEGAL  PROFESSION 

THIS    BOOK 

IS  AFFECTIONATELY   DEDICATED 


"  Cross-examination,  —  the  rarest,  the  most  useful,  and 
the  most  difficult  to  be  acquired  of  all  the  accomplishments 
of  the  advocate.  ...  It  has  always  been  deemed  the  surest 
test  of  truth  and  a  better  security  than  the  oath."  —  Cox. 


PREFACE 

In  offering  this  book  to  the  legal  profession  I  do 
not  intend  to  arrogate  to  myself  any  superior  knowledge 
upon  the  subject,  excepting  in  so  far  as  it  may  have 
been  gleaned  from  actual  experience.  Nor  have  I 
attempted  to  treat  the  subject  in  any  scientific,  elabo- 
rate, or  exhaustive  way;  but  merely  to  make  some 
suggestions  upon  the  art  of  cross-examination,  which 
have  been  gathered  as  a  result  of  twenty-five  years' 
court  practice,  during  which  time  I  have  examined  and 
cross-examined  about  fifteen  thousand  witnesses,  drawn 
from  all  classes  of  the  community. 

If  what  is  here  written  affords  anything  of  instruction 
to  the  younger  members  of  my  profession,  or  of  interest 
or  entertainment  to  the  public,  it  will  amply  justify  the 
time  taken  from  my  summer  vacation  to  put  in  readable 
form  some  points  from  my  experience  upon  this  most 
difficult  subject. 

Bar  Harbor,  Maine, 
September  i,  1903. 


CONTENTS 


CHAPTER  PACE 

I.     INTRODUCTORY ii 

II.     THE   MANNER   OF   CROSS-EXAMINATION  ...  21 

III.  THE   MATTER   OF   CROSS-EXAMINATION    ...  37 

IV.  CROSS-EXAMINATION  OF  THE  PERJURED  WITNESS  55 
V.     CROSS-EXAMINATION    OF   EXPERTS     ....  79 

VI.     THE   SEQUENCE   OF    CROSS-EXAMINATION        .         .  loi 

VII.     SILENT   CROSS-EXAMINATION iir 

VIII.     CROSS-EXAMINATION  TO  CREDIT,  AND  ITS  ABUSES  iig 

IX.     GOLDEN  RULES  FOR  EXAMINATION  OF  WITNESSES  133 

X.     SOME     FAMOUS     CROSS-EXAMINERS     AND     THEIR 

METHODS 143 

XI.     THE    CROSS-EXAMINATION    OF    RICHARD    PIGOTT 

BEFORE    THE    PARNELL   COMMISSION    .  .173 

XII.     THE    CROSS-EXAMINATION    OF    DR.    IN    THE 

CARLYLE  W.   HARRIS    CASE 195 

XIII.  THE    CROSS-EXAMINATION    OF    THOMAS    J.    MIN- 

NOCK   IN   THE    BELLEVUE    HOSPITAL  CASE         .  213 

XIV.  THE    CROSS-EXAMINATION    OF    JEREMIAH    SMITH 

IN   THE    WILLIAM   PALMER   CASE    .         .         .         .247 

XV.     THE   CROSS-EXAMINATION   OF   RUSSELL   SAGE   IN 

THE   LAIDLAW-SAGE   CASE 267 


CHAPTER   I 

INTRODUCTORY 


chaptp:r  I 


INTRODUCTORY 


"  The  issue  of  a  cause  rarely  depends  upon  a  speech 
and  is  but  seldom  even  affected  by  it.  But  there  is  never 
a  cause  contested,  the  result  of  which  is  not  mainly  de- 
pendent upon  the  skill  with  which  the  advocate  conducts 
his  cross-examination." 

This  is  the  conclusion  arrived  at  by  one  of  England's 
greatest  advocates  at  the  close  of  a  long  and  eventful 
career  at  the  Bar.  It  was  written  some  fifty  years  ago 
and  at  a  time  when  oratory  in  public  trials  was  at  its 
height.  It  is  even  more  true  at  the  present  time,  when 
what  was  once  commonly  reputed  a  "  great  speech  "  is 
seldom  heard  in  our  courts,  —  because  the  modern  meth- 
ods of  practising  our  profession  have  had  a  tendency 
to  discourage  court  oratory  and  the  development  of 
orators.  The  old-fashioned  orators  who  were  wont 
to  "  grasp  the  thunderbolt "  are  now  less  in  favor 
than  formerly.  With  our  modern  jurymen  the  arts  of 
oratory,  —  "law-papers  on  fire,"  as  Lord  Brougham's 
speeches  used  to  be  called,  —  though  still  enjoyed  as  im- 
passioned literary  efforts,  have  become  almost  useless  as 
persuasive  arguments  or  as  a  "  summing  up  "  as  they  are 
now  called. 

13 


THE   ART   OF    CROSS-EXAMINATION 

Modern  juries,  especially  in  large  cities,  are  composed 
of  practical  business  men  accustomed  to  think  for  them- 
selves, experienced  in  the  ways  of  life,  capable  of  forming 
estimates  and  making  nice  distinctions,  unmoved  by  the 
passions  and  prejudices  to  which  court  oratory  is  nearly 
always  directed.  Nowadays,  jurymen,  as  a  rule,  are  wont 
to  bestow  upon  testimony  the  most  intelligent  and  pains- 
taking attention,  and  have  a  keen  scent  for  truth.  It  is 
not  intended  to  maintain  that  juries  are  no  longer  human, 
or  that  in  certain  cases  they  do  not  still  go  widely  astray, 
led  on  by  their  prejudices  if  not  by  their  passions.  Nev- 
ertheless, in  the  vast  majority  of  trials,  the  modern  jury- 
man, and  especially  the  modern  city  juryman,  —  it  is 
in  our  large  cities  that  the  greatest  number  of  litigated 
cases  is  tried,  —  comes  as  near  being  the  model  arbiter  of 
fact  as  the  most  optimistic  champion  of  the  institution  of 
trial  by  jury  could  desire. 

I  am  aware  that  many  members  of  my  profession  still 
sneer  at  trial  by  jury.  Such  men,  however,  —  when  not 
among  the  unsuccessful  and  disgruntled,  —  will,  with  but 
few  exceptions,  be  found  to  have  had  but  little  practice 
themselves  in  court,  or  else  to  belong  to  that  ever  grow- 
ing class  in  our  profession  who  have  relinquished  their 
court  practice  and  are  building  up  fortunes  such  as  were 
never  dreamed  of  in  the  legal  profession  a  decade  ago, 
by  becoming  what  may  be  styled  business  lawyers  — 
men  who  are  learned  in  the  law  as  a  profession,  but  who 
through  opportunity,  combined  with  rare  commercial  abil- 

14 


INTRODUCTORY 

ity,  have  come  to  apply  their  learning  —  especially  their 
knowledge  of  corporate  law  —  to  great  commercial  enter- 
prises, combinations,  organizations,  and  reorganizations, 
and  have  thus  come  to  practise  law  as  a  business. 

To  such  as  these  a  book  of  this  nature  can  have  but 
little  interest.  It  is  to  those  who  by  choice  or  chance 
are,  or  intend  to  become,  engaged  in  that  most  laborious 
of  all  forms  of  legal  business,  the  trial  of  cases  in  court, 
that  the  suggestions  and  experiences  which  follow  are 
especially  addressed. 

It  is  often  truly  said  that  many  of  our  best  lawyers 
—  I  am  speaking  now  especially  of  New  York  City  — 
are  withdrawing  from  court  practice  because  the  nature 
of  the  litigation  is  changing.  To  such  an  extent  is  this 
change  taking  place  in  some  localities  that  the  more  im- 
portant commercial  cases  rarely  reach  a  court  decision. 
Our  merchants  prefer  to  compromise  their  difficulties, 
or  to  write  off  their  losses,  rather  than  enter  into  litiga- 
tions that  must  remain  dormant  in  the  courts  for  upward 
of  three  years  awaiting  their  turn  for  a  hearing  on  the 
overcrowded  court  calendars.  And  yet  fully  six  thou- 
sand cases  of  one  kind  or  another  are  tried  or  disposed 
of  yearly  in  the  Borough  of  Manhattan  alone. 

This  congestion  is  not  wholly  due  to  lack  of  judges, 
or  that  they  are  not  capable  and  industrious  men ;  but  is 
largely,  it  seems  to  me,  the  fault  of  the  system  in  vogue 
in  all  our  American  courts  of  allowing  any  lawyer,  duly 
enrolled  as  a  member  of   the   Bar,   to  practise  in  the 

15 


THE   ART    OF   CROSS-EXAMINATION 

highest  courts.  In  the  United  States  we  recognize  no 
distinction  between  barrister  and  soHcitor;  we  are  all 
barristers  and  solicitors  by  turn.  One  has  but  to  fre- 
quent the  courts  to  become  convinced  that,  so  long  as 
the  ten  thousand  members  at  the  New  York  County 
Bar  all  avail  themselves  of  their  privilege  to  appear  in 
court  and  try  their  own  clients'  cases,  the  great  majority 
of  the  trials  will  be  poorly  conducted,  and  much  valuable 
time  wasted. 

The  conduct  of  a  case  in  court  is  a  peculiar  art  for 
which  many  men,  however  learned  in  the  law,  are  not 
fitted ;  and  where  a  lawyer  has  but  one  or  even  a  dozen 
experiences  in  court  in  each  year,  he  can  never  become 
a  competent  trial  lawyer.  I  am  not  addressing  myself 
to  clients,  who  often  assume  that,  because  we  are  duly 
qualified  as  lawyers,  we  are  therefore  competent  to  try 
their  cases ;  I  am  speaking  in  behalf  of  our  courts, 
against  the  congestion  of  the  calendars,  and  the  conse- 
quent crowding  out  of  weighty  commercial   litigations. 

One  experienced  in  the  trial  of  causes  will  not  require, 
at  the  utmost,  more  than  a  quarter  of  the  time  taken  by 
the  most  learned  inexperienced  lawyer  in  developing  his 
facts.  His  case  will  be  thoroughly  prepared  and  under- 
stood before  the  trial  begins.  His  points  of  law  and 
issues  of  fact  will  be  clearly  defined  and  presented  to  the 
court  and  jury  in  the  fewest  possible  words.  He  will  in 
this  way  avoid  many  of  the  erroneous  rulings  on  ques- 
tions of  law  and  evidence  which  are  now  upsetting  so 

i6 


INTROI^UCrrORY 

many  verdicts  on  appeal.  Me  will  not  only  complete 
his  trial  in  shorter  time,  but  he  will  he  likely  to  bring 
about  an  equitable  verdict  in  the  case  which  may  not  be 
appealed  from  at  all,  or,  if  appealed,  will  be  sustained  by 
a  higher  court,  instead  of  being  sent  back  for  a  retrial 
and  the  consequent  consumption  of  the  time  of  another 
judge  and  jury  in  doing  the  work  all  over  again.' 

These  facts  are  being  more  and  more  appreciated  each 
year,  and  in  our  local  courts  there  is  already  an  ever 
increasing  coterie  of  trial  lawyers,  who  are  devoting  the 
principal  part  of  their  time  to  court  practice. 

A  few  lawyers  have  gone  so  far  as  to  refuse  direct 
communication  with  clients  excepting  as  they  come  rep- 
resented by  their  own  attorneys.  It  is  pleasing  to  note 
that  some  of  our  leading  advocates  who,  having  been 
called  away  from  large  and  active  law  practice  to  enter 
the  government  service,  have  expressed  their  intention, 
when  they  resume  the  practice  of  the  law,  to  refuse  all 
cases  where  clients  are  not  already  represented  by  com- 
petent attorneys,  recognizing,  at  least  in  their  own  prac- 
tice, the  English  distinction  between  the  barrister  and 
solicitor.  We  are  thus  beginning  to  appreciate  in  this 
country  what  the  English  courts  have  so  long  recog- 
nized ;  that  the  only  way  to  insure  speedy  and  intelli- 
gently conducted  litigations  is  to  inaugurate  a  custom 

^  In  the  Borough  of  Manhattan  at  the  present  time  thirty-three  per  cent  of 
the  cases  tried  are  appealed,  and  forty-two  per  cent  of  the  cases  appealed  are 
reversed  and  sent  back  for  re-trial  as  shown  by  the  court  statistics. 

B  YJ 


THE   ART    OF    CROSS-EXAMINATION 

of  confining  court  practice  to  a  comparatively  limited 
number  of  trained  trial  lawyers. 

The  distinction  between  general  practitioners  and 
specialists  is  already  established  in  the  medical  profes- 
sion and  largely  accepted  by  the  public.  Who  would 
think  nowadays  of  submitting  himself  to  a  serious  opera- 
tion at  the  hands  of  his  family  physician,  instead  of 
calling  in  an  experienced  surgeon  to  handle  the  knife  ? 
And  yet  the  family  physician  may  have  once  been  com- 
petent to  play  the  part  of  surgeon,  and  doubtless  has 
had,  years  ago,  his  quota  of  hospital  experience.  But 
he  so  infrequently  enters  the  domain  of  surgeiy  that  he 
shrinks  from  undertaking  it,  except  under  circumstances 
where  there  is  no  alternative.  There  should  be  a  simi- 
lar distinction  in  the  legal  profession.  The  family  law- 
yer may  have  once  been  competent  to  conduct  the 
litigation ;  but  he  is  out  of  practice  —  he  is  not  "  in 
training"  for  the  competition. 

There  is  no  short  cut,  no  royal  road  to  proficiency,  in 
the  art  of  advocacy.  It  is  experience,  and  one  might 
almost  say  experience  alone,  that  brings  success.  I  am 
not  speaking  of  that  small  minority  of  men  in  all  walks 
of  life  who  have  been  touched  by  the  magic  wand  of 
genius,  but  of  men  of  average  endowments  and  even 
special  aptitude  for  the  calling  of  advocacy ;  with  them 
it  is  a  race  of  experience.  The  experienced  advocate 
can  look  back  upon  those  less  advanced  in  years  or  expe- 
rience, and  rest  content  in  the  thought  that  they  are  just 

i8 


INTRODUCTORY 

so  many  cases  behind   him;  that  if  he  keeps  on,  with 
equal  opportunities  in   court,  they   can    never  overtake 
him.     Some   day   the    public    will    recognize    this  fact. 
But  at  present,  what  does  the  ordinary  litigant  know  of 
the  advantages  of  having  counsel   to  conduct  his  case 
who  is  "at  home"  in  the  court  room,  and  perhaps  even 
acquainted  with  the  very  panel  of  jurors  before  whom 
his  case  is  to  be  heard,  through  having  already  tried  one 
or  more  cases  for  other  clients  before   the  same  men? 
How  little  can   the  ordinary  business  man  realize   the 
value  to  himself  of  having  a  lawyer  who  understands  the 
habits  of  thought  and  of  looking  at  evidence  —  the  bent 
of  mind  — of  the  very  judge  who  is  to  preside  at  the 
trial  of  his  case.     Not  that  our  judges  are  not  eminently 
fair-minded  in  the  conduct  of  trials;  but  they  are  men 
for  all  that,  oftentimes  very  human  men ;  and  the  trial 
lawyer  who  knows  his  judge,  starts  with  an  advantage 
that   the    inexperienced    practitioner    little    appreciates. 
How  much,  too,  does  experience  count  in  the  selection 
of  the  jury  itself —one  of  the  "fine  arts"  of  the  advocate! 
These  are  but  a  few  of  the  many  similar  advantages  one 
might  enumerate,  were  they  not  apart  from  the  subject 
we  are  now  concerned  with  —  the  skill  of  the  advocate 
in   conducting   the    trial  itself,  once  the  jury  has  been 
chosen. 

When  the  public  realizes  that  a  good  trial  lawyer  is 
the  outcome,  one  might  say  of  generations  of  witnesses, 
when  clients  fully  appreciate  the  dangers   they  run   in 

19 


THE    ART    OF    CROSS-EXAMINATION 

intrusting  their  litigations  to  so-called  "  office  lawyers  " 
with  little  or  no  experience  in  court,  they  will  insist  upon 
their  briefs  being  intrusted  to  those  who  make  a  spe- 
cialty of  court  practice,  advised  and  assisted,  if  you  will, 
by  their  own  private  attorneys.  One  of  the  chief  dis- 
advantages of  our  present  system  will  be  suddenly  swept 
away ;  the  court  calendars  will  be  cleared  by  speedily 
conducted  trials ;  issues  will  be  tried  within  a  reasonable 
time  after  they  are  framed ;  the  commercial  cases,  now 
disadvantageously  settled  out  of  court  or  abandoned 
altogether,  will  return  to  our  courts  to  the  satisfaction 
both  of  the  legal  profession  and  of  the  business  commu- 
nity at  large ;  causes  will  be  more  skilfully  tried  —  the 
art  of  cross-examination  more  thoroughly  understood. 


20 


CHAPTER   II 


THE   MANNER  OF  CROSS-EXAMINATION 


CHAPTER    II 

THE    MANNER    OF    CROSS-EXAMINATION 

It  needs  but  the  simple  statement  of  the  nature  of 
cross-examination  to  demonstrate  its  indispensable  char- 
acter in  all  trials  of  questions  of  fact.  No  cause  reaches 
the  stage  of  litigation  unless  there  are  two  sides  to  it. 
If  the  witnesses  on  one  side  deny  or  qualify  the  state- 
ments made  by  those  on  the  other,  which  side  is  telling 
the  truth  ?  Not  necessarily  which  side  is  offering  per- 
jured testimony,  —  there  is  far  less  intentional  perjury  in 
the  courts  than  the  inexperienced  would  believe,  —  but 
which  side  is  honestly  mistaken }  —  for,  on  the  other 
hand,  evidence  itself  is  far  less  trustworthy  than  the 
public  usually  realizes.  The  opinions  of  which  side  are 
warped  by  prejudice  or  blinded  by  ignorance  ?  Which 
side  has  had  the  power  or  opportunity  of  correct  observa- 
tion ?  How  shall  we  tell,  how  make  it  apparent  to  a  jury 
of  disinterested  men  who  are  to  decide  between  the  liti- 
gants .?     Obviously,  by  the  means  of  cross-examination. 

If  all  witnesses  had  the  honesty  and  intelligence  to 
come  forward  and  scrupulously  follow  the  letter  as  well 
as  the  spirit  of  the  oath,  "  to  tell  the  truth,  the  whole 

23 


THE    ART    OF    CROSS-EXAMINATION 

truth,  and  nothing  but  the  truth,"  and  if  all  advocates  on 
either  side  had  the  necessary  experience,  combined  with 
honesty  and  intelligence,  and  were  similarly  sworn  to 
develop  the  whole  truth  and  nothing  but  the  truth,  of 
course  there  would  be  no  occasion  for  cross-examination, 
and  the  occupation  of  the  cross-examiner  would  be  gone. 
But  as  yet  no  substitute  has  ever  been  found  for  cross- 
examination  as  a  means  of  separating  truth  from  false- 
hood, and  of  reducing  exaggerated  statements  to  their 
true  dimensions. 

The  system  is  as  old  as  the  history  of  nations.  In- 
deed, to  this  day,  the  account  given  by  Plato  of  Socrates's 
cross-examination  of  his  accuser,  Miletus,  while  defending 
himself  against  the  capital  charge  of  corrupting  the  youth 
of  Athens,  may  be  quoted  as  a  masterpiece  in  the  art  of 
cross-questioning. 

Cross-examination  is  generally  considered  to  be  the 
most  difficult  branch  of  the  multifarious  duties  of  the 
advocate.  Success  in  the  art,  as  some  one  has  said, 
comes  more  often  to  the  happy  possessor  of  a  genius 
for  it.  Great  lawyers  have  often  failed  lamentably  in 
it,  while  marvellous  success  has  crowned  the  efforts  of 
those  who  might  otherwise  have  been  regarded  as  of  a 
mediocre  grade  in  the  profession.  Yet  personal  expe- 
rience and  the  emulation  of  others  trained  in  the  art, 
are  the  surest  means  of  obtaining  proficiency  in  this 
all-important  prerequisite  of  a  competent  trial  lawyer. 

It  requires  the  greatest  ingenuity;  a  habit  of  logical 

24 


THE    MANNER    OK   CROSS-EXAMINATION 

thought;  clearness  of  i^erception  in  general;  infinite 
patience  and  self-control ;  power  to  read  men's  minds 
intuitively,  to  judge  of  their  characters  by  their  faces,  to 
appreciate  their  motives;  ability  to  act  with  force  and 
precision;  a  masterful  knowledge  of  the  subject-matter 
itself;  an  extreme  caution ;  and,  above  all,  the  iiisiinct  io 
discover  the  weak  point  in  the  witness  under  examina- 
tion. 

One  has  to  deal  with  a  prodigious  variety  of  witnesses 
testifying  under  an  infinite  number  of  differing  circum- 
stances. It  involves  all  shades  and  complexions  of 
human  morals,  human  passions,  and  human  intelligence. 
It  is  a  mental  duel  between  counsel  and  witness. 

In  discussing  the  methods  to  employ  when  cross- 
examining  a  witness,  let  us  imagine  ourselves  at  work  in 
the  trial  of  a  cause,  and  at  the  close  of  the  direct  exami- 
nation of  a  witness  called  by  our  adversary.  The  first 
inquiry  would  naturally  be.  Has  the  witness  testified  to 
anything  that  is  material  against  us  ?  Has  his  testimony 
injured  our  side  of  the  case  ?  Has  he  made  an  impres- 
sion with  the  jury  against  us }  Is  it  necessary  for  us  to 
cross-examine  him  at  all .? 

Before  dismissing  a  witness,  however,  the  possibility 
of  being  able  to  elicit  some  new  facts  in  our  own  favor 
should  be  taken  into  consideration.  If  the  witness  is 
apparently  truthful  and  candid,  this  can  be  readily  done 
by  asking  plain,  straightforward  questions.  If,  however, 
there  is  any  reason  to  doubt  the  willingness  of  the  wit- 

25 


THE   ART   OF   CROSS-EXAMINATION 

ness  to  help  develop  the  truth,  it  may  be  necessary  to 
proceed  with  more  caution,  and  possibly  to  put  the  wit- 
ness in  a  position  where  it  will  appear  to  the  jury  that  he 
could  tell  a  good  deal  if  he  wanted  to,  and  then  leave 
him.  The  juiy  will  thus  draw  the  inference  that,  had  he 
spoken,  it  would  have  been  in  our  favor. 

But  suppose  the  witness  has  testified  to  material  facts 
against  us,  and  it  becomes  our  duty  to  break  the  force 
of  his  testimony,  or  abandon  all  hope  of  a  jury  verdict. 
How  shall  we  begin  ?  How  shall  we  tell  whether  the 
witness  has  made  an  honest  mistake,  or  has  committed 
perjury?  The  methods  in  his  cross-examination  in  the 
two  instances  would  naturally  be  very  different.  There 
is  a  marked  distinction  between  discrediting  the  ^es^i- 
mony  and  discrediting  the  witness.  It  is  largely  a  matter 
of  instinct  on  the  part  of  the  examiner.  Some  people 
call  it  the  language  of  the  eye,  or  the  tone  of  the  voice, 
or  the  countenance  of  the  witness,  or  his  manner  of  tes- 
tifying, or  all  combined,  that  betrays  the  wilful  perjurer. 
It  is  difficult  to  say  exactly  what  it  is,  excepting  that 
constant  practice  seems  to  enable  a  trial  lawyer  to  form 
a  fairly  accurate  judgment  on  this  point.  A  skilful 
cross-examiner  seldom  takes  his  eye  from  an  important 
witness  while  he  is  being  examined  by  his  adversary. 
Every  expression  of  his  face,  especially  his  mouth,  even 
every  movement  of  his  hands,  his  manner  of  expressing 
himself,  his  whole  bearing  —  all  help  the  examiner  to 
arrive  at  an  accurate  estimate  of  his  integrity. 

26 


THE    MANNER    OF   CROSS-EXAMINATION 

Let  us  assume,  then,  that  we  have  been  correct  in  our 
judgment  of  this  particular  witness,  and  that  he  is  trying  to 
describe  honestly  the  occurrences  to  which  he  has  testified, 
but  has  fallen  into  a  serious  mistake,  through  ignorance, 
blunder,  or  what  not,  which  must  be  exposed  to  the  minds 
of  the  jury.  How  shall  we  go  about  it?  This  l^rings 
us  at  once  to  the  first  important  factor  in  our  discus- 
sion, the  manner  of  the  cross-examiner. 

It  is  absurd  to  suppose  that  any  witness  who  has  sworn 
positively  to  a  certain  set  of  facts,  even  if  he  has  inadver- 
tently stretched  the  truth,  is  going  to  be  readily  induced 
by  a  lawyer  to  alter  them  and  acknowledge  his  mistake. 
People  as  a  rule  do  not  reflect  upon  their  meagre  oppor- 
tunities for  observing  facts,  and  rarely  suspect  the  frailty 
of  their  own  powers  of  observation.  They  come  to 
court,  when  summoned  as  witnesses,  prepared  to  tell 
what  they  think  they  know ;  and  in  the  beginning  they 
resent  an  attack  upon  their  story  as  they  would  one  upon 
their  integrity. 

If  the  cross-examiner  allows  the  witness  to  see,  by  his 
manner  toward  him  at  the  start,  that  he  distrusts  his 
integrity,  he  will  straighten  himself  in  the  witness  chair 
and  mentally  defy  him.  at  once.  If,  on  the  other  hand, 
the  counsel's  manner  is  courteous  and  conciliatory,  the 
witness  will  soon  lose  the  fear  all  witnesses  have  of  the 
cross-examiner,  and  can  almost  imperceptibly  be  induced 
to  enter  into  a  discussion  of  his  testimony  in  a  fair- 
minded  spirit,  which,  if  the  cross-examiner  is  clever,  will 

27 


THE   ART    OF    CROSS-EXAMINATION 

soon  disclose  the  weak  points  in  the  testimony.  The 
sympathies  of  the  jury  are  invariably  on  the  side  of  the 
witness,  and  they  are  quick  to  resent  any  discourtesy 
toward  him.  They  are  willing  to  admit  his  mistakes^ 
if  you  can  make  them  apparent,  but  are  slow  to  believe 
him  guilty  of  perjury.  Alas,  how  often  this  is  lost  sight 
of  in  our  daily  court  experiences !  One  is  constantly 
brought  face  to  face  with  lawyers  who  act  as  if  they 
thought  that  every  one  who  testifies  against  their  side  of 
the  case  is  committing  wilful  perjury.  No  wonder  they 
accomplish  so  little  with  their  CROSS-examination !  By 
their  shouting,  brow-beating  style  they  often  confuse  the 
wits  of  the  witness,  it  is  true ;  but  they  fail  to  discredit 
him  with  the  jury.  On  the  contrary,  they  elicit  sympathy 
for  the  witness  they  are  attacking,  and  little  realize  that 
their  "  vigorous  cross-examination,"  at  the  end  of  which 
they  sit  down  with  evident  self-satisfaction,  has  only 
served  to  close  effectually  the  mind  of  at  least  one  fair- 
minded  juryman  against  their  side  of  the  case,  and  as 
likely  as  not  it  has  brought  to  light  some  important  fact 
favorable  to  the  other  side  which  had  been  overlooked 
in  the  examination-in-chief. 

There  is  a  story  told  of  Reverdy  Johnson,  who  once, 
in  the  trial  of  a  case,  twitted  a  brother  lawyer  with 
feebleness  of  memory,  and  received  the  prompt  retort, 
"  Yes,  Mr.  Johnson ;  but  you  will  please  remember  that, 
unlike  the  lion  in  the  play,  I  have  something  more  to  do 
than  roar!' 

28 


THE    MANNER    OF    CROSS-EXAMINATION 

The  only  lawyer  I  ever  heard  employ  this  roaring 
method  successfully  was  Benjamin  F".  Butler.  With  him 
politeness,  or  even  humanity,  was  out  of  the  question. 
And  it  has  been  said  of  him  that  "concealment  and 
equivocation  were  scarcely  possible  to  a  witness  under 
the  operation  of  his  methods."  But  Butler  had  a  won- 
derful personality.  He  was  aggressive  and  even  pugna- 
cious, but  picturesque  withal  —  witnesses  were  afraid  of 
him.  Butler  was  popular  with  the  masses;  he  usually 
had  the  numerous  "  hangers-on  "  in  the  court  room  on 
his  side  of  the  case  from  the  start,  and  each  little  point 
he  would  make  with  a  witness  met  with  their  ready  and 
audible  approval.  This  greatly  increased  the  embarrass- 
ment of  the  witness  and  gave  Butler  a  decided  advan- 
tage. It  must  be  remembered  also  that  Butler  had  a 
contempt  for  scruple  which  would  hardly  stand  him  in 
good  stead  at  the  present  time.  Once  he  was  cross- 
questioning  a  witness  in  his  characteristic  manner. 
The  judge  interrupted  to  remind  him  that  the  witness 
was  a  Harvard  professor.  "  I  know  it,  your  Honor," 
replied  Butler ;  "  we  hanged  one  of  them  the  other  day." ' 

On  the  other  hand,  it  has  been  said  of  Rufus  Choate, 
whose  art  and  graceful  qualities  of  mind  certainly  entitle 
him  to  the  foremost  rank  among  American  advocates, 
that  in  the  cross-examination  of  witnesses,  "He  never 
aroused  opposition  on  the  part  of  the  witness  by  attack- 
ing him,  but  disarmed  him  by  the  quiet  and  courteous 

^  '-Life  Sketches  of  Eminent  Lawyers,"  G.  J.  Clark,  Esq. 
29 


THE   ART    OF    CROSS-EXAMINATION 

manner  in  which  he  pursued  his  examination.  He  was 
quite  sure,  before  giving  him  up,  to  expose  the  weak 
parts  of  his  testimony  or  the  bias,  if  any,  which  detracted 
from  the  confidence  to  be  given  it."^  [One  of  Choate's 
bon  mots  was  that  "  a  lawyer's  vacation  consisted  of  the 
space  between  the  question  put  to  a  witness  and  his 
answer."] 

Judah  P.  Benjamin,  "  the  eminent  lawyer  of  two  con- 
tinents," used  to  cross-examine  with  his  eyes.  "  No 
witness  could  look  into  Benjamin's  black,  piercing  eyes 
and  maintain  a  lie." 

Among  the  English  barristers,  Sir  James  Scarlett, 
Lord  Abinger,  had  the  reputation,  as  a  cross-examiner, 
of  having  outstripped  all  advocates  who,  up  to  that 
time,  had  appeared  at  the  British  Bar.  "  The  gentle- 
manly ease,  the  polished  courtesy,  and  the  Christian 
urbanity  and  affection,  with  which  he  proceeded  to  the 
task,  did  infinite  mischief  to  the  testimony  of  witnesses 
who  were  striving  to  deceive,  or  upon  whom  he  found 
it  expedient  to  fasten  a  suspicion." 

A  good  advocate  should  be  a  good  actor.  The  most 
cautious  cross-examiner  will  often  elicit  a  damaging  an- 
swer. Now  is  the  time  for  the  greatest  self-control.  If 
you  show  by  your  face  how  the  answer  hurt,  you  may 
lose  your  case  by  that  one  point  alone.  How  often 
one  sees  the  cross-examiner  fairly  staggered  by  such  an 
answer.     He  pauses,  perhaps  blushes,  and  after  he  has 

1  "  Memories  of  Rufus  Choate,"  Neilson. 
30 


THE    MANNER   OF   CROSS-EXAMINATION 

allowed  the  answer  to  have  its  full  effect,  finally  regains 
his  self-possession,  but  seldom  his  control  of  the  witness. 
With  the  really  experienced  trial  lawyer,  such  answers, 
instead  of  appearing  to  surprise  or  disconcert  him,  will 
seem  to  come  as  a  matter  of  course,  and  will  fall  perfectly 
fiat.  He  will  proceed  with  the  next  question  as  if  noth- 
ing had  happened,  or  even  perhaps  give  the  witness  an 
incredulous  smile,  as  if  to  say,  "Who  do  you  suppose 
would  believe  that  for  a  minute.?" 

An  anecdote  apropos  of  this  point  is  told  of  Rufus 
Choate.  "  A  witness  for  his  antagonist  let  fall,  with  no 
particular  emphasis,  a  statement  of  a  most  important  fact 
from  which  he  saw  that  inferences  greatly  damaging  to 
his  client's  case  might  be  drawn  if  skilfully  used.  He 
suffered  the  witness  to  go  through  his  statement  and 
then,  as  if  he  saw  in  it  something  of  great  value  to 
himself,  requested  him  to  repeat  it  carefully  that  he 
might  take  it  down  correctly.  He  as  carefully  avoided 
cross-examining  the  witness,  and  in  his  argument  made 
not  the  least  allusion  to  his  testimony.  When  the  op- 
posing counsel,  in  his  close,  came  to  that  part  of  his  case 
in  his  argument,  he  was  so  impressed  with  the  idea  that 
Mr.  Choate  had  discovered  that  there  w^as  something  in 
that  testimony  which  made  in  his  favor,  although  he 
could  not  see  how,  that  he  contented  himself  with 
merely  remarking  that  though  Mr.  Choate  had  seemed 
to  think  that  the  testimony  bore  in  favor  of  his  client, 
it  seemed  to  him  that  it  went  to  sustain  the  opposite 

31 


THE   ART    OF   CROSS-EXAMINATION 

side,  and  then  went  on  with  the  other  parts  of  his 
case."  ^ 

It  is  the  love  of  combat  which  every  man  possesses 
that  fastens  the  attention  of  the  jury  upon  the  progress 
of  the  trial.  The  counsel  who  has  a  pleasant  person- 
ality ;  who  speaks  with  apparent  frankness ;  who  appears 
to  be  an  earnest  searcher  after  truth ;  who  is  courteous 
to  those  who  testify  against  him ;  who  avoids  delaying 
constantly  the  progress  of  the  trial  by  innumerable  ob- 
jections and  exceptions  to  perhaps  incompetent  but 
harmless  evidence ;  who  seems  to  know  what  he  is 
about  and  sits  down  when  he  has  accomplished  it,  ex- 
hibiting a  spirit  of  fair  play  on  all  occasions  —  he  it  is 
who  creates  an  atmosphere  in  favor  of  the  side  which 
he  represents,  a  powerful  though  unconscious  influence 
with  the  jury  in  arriving  at  their  verdict.  Even  if,  owing 
to  the  weight  of  testimony,  the  verdict  is  against  him, 
yet  the  amount  will  be  far  less  than  the  client  had 
schooled  himself  to  expect. 

On  the  other  hand,  the  lawyer  who  wearies  the  court 
and  the  jury  with  endless  and  pointless  cross-exami- 
nations ;  who  is  constantly  losing  his  temper  and  showing 
his  teeth  to  the  witnesses ;  who  wears  a  sour,  anxious 
expression;  who  possesses  a  monotonous,  rasping,  pene- 
trating voice  ;  who  presents  a  slovenly,  unkempt  persona] 
appearance ;  who  is  prone  to  take  unfair  advantage  of 
witness  or  counsel,  and  seems  determined  to  win  at  all 

^  "  Memories  of  Rufus  Choate,"  Neilson. 
32 


THK    MANNKR    OF   CROSS-KXAMINATION 

hazards  —  soon  prejudices  a  jury  against  himself  and 
the  client  he  represents,  entirely  irrespective  of  the  sworn 
testimony  in  the  case. 

The  evidence  often  seems  to  be  going  all  one  way, 
when  in  reality  it  is  not  so  at  all.  The  cleverness  of  the 
cross-examiner  has  a  great  deal  to  do  with  this ;  he  can 
often  create  an  atmosphere  which  will  obscure  much  evi- 
dence that  would  otherwise  tell  against  him.  This  is 
part  of  the  "  generalship  of  a  case  "  in  its  progress  to  the 
argument,  which  is  of  such  vast  consequence.  There  is 
eloquence  displayed  in  the  examination  of  witnesses  as 
well  as  on  the  argument.  "  There  is  matter  in  manncrr 
I  do  not  mean  to  advocate  that  exaggerated  manner  one 
often  meets  with,  which  divides  the  attention  of  your 
hearers  between  yourself  and  your  question,  which  often 
diverts  the  attention  of  the  jury  from  the  point  you  are 
trying  to  make  and  centres  it  upon  your  own  idiosyn- 
crasies of  manner  and  speech.  As  the  m.an  who  was 
somewhat  deaf  and  could  not  get  near  enough  to  Henr)- 
Clay  in  one  of  his  finest  efforts,  exclaimed,  *'  I  didn't 
hear  a  word  he  said,  but,  great  Jehovah,  didn't  he  make 
the  motions !  " 

The  very  intonations  of  voice  and  the  expression  of 
face  of  the  cross-examiner  can  be  made  to  produce  a 
marked  effect  upon  the  juiy  and  enable  them  to  appre- 
ciate fully  a  point  they  might  otherwise  lose  altogether. 

"  Once,  when  cross-examining  a  witness  by  the  name 
of  Sampson,  who  was  sued  for  libel  as  editor  of  the 
c  33 


THE    ART    OF    CROSS-EXAMINATION 

Referee,  Russell  asked  the  witness  a  question  which  he 
did  not  answer.  '  Did  you  hear  my  question  ? '  said 
Russell  in  a  low  voice.  '  I  did,'  said  Sampson.  '  Did 
you  understand  it } '  asked  Russell,  in  a  still  lower  voice. 
'  I  did,'  said  Sampson.  '  Then,'  said  Russell,  raising  his 
voice  to  its  highest  pitch,  and  looking  as  if  he  would 
spring  from  his  place  and  seize  the  witness  by  the  throat, 
'why  have  you  not  answered  it?  Tell  the  jury  why 
you  have  not  answered  it.'  A  thrill  of  excitement  ran 
through  the  court  room.  Sampson  was  overwhelmed, 
and  he  never  pulled  himself  together  again."  ^ 

Speak  distinctly  yourself,  and  compel  your  witness  to 
do  so.  Bring  out  your  points  so  clearly  that  men  of  the 
most  ordinary  intelligence  can  understand  them.  Keep 
your  audience  —  the  jury — always  interested  and  on  the 
alert.  Remember  it  is  the  minds  of  the  jury  you  are 
addressing,  even  though  your  question  is  put  to  the  wit- 
ness. Suit  the  modulations  of  your  voice  to  the  subject 
under  discussion.  Rufus  Choate's  voice  would  seem  to 
take  hold  of  the  witness,  to  exercise  a  certain  sway  over 
him,  and  to  silence  the  audience  into  a  hush.  He  allowed 
his  rich  voice  to  exhibit  in  the  examination  of  witnesses, 
much  of  its  variety  and  all  of  its  resonance.  The  contrast 
between  his  tone  in  examining  and  that  of  the  counsel 
who  followed  him  was  very  marked. 

"  Mr.  Choate's  appeal  to  the  jury  began  long  before 
his  final  argument ;  it  began  when  he  first  took  his  seat 

1  "  Life  of  Lord  Russell,"  O'Brien. 
34 


THE    MANNER    OF    CROSS-EXAMINATION 

before  them  and  looked  into  their  eyes.     He  generally 
contrived  to  get  his  seat  as  near  them  as  was  convenient, 
if  possible  having  his  table  close  to  the  Bar,  in  front  of 
their  seats,  and  separated  from  them  only  by  a  narrow 
space  for  passage.     There  he  sat,  calm,  contemplative  ; 
in  the  midst  of  occasional  noise  and  confusion  solemnly 
unruffled ;  always  making  some  little  headway  either  with 
the  jury,  the  court,  or  the  witness ;  never  doing  a  single 
thing  which  could  by  possibility  lose  him  favor,  ever  doing 
some  little  thing  to  win  it ;  smiling  benignantly  upon  the 
counsel  when  a  good  thing  was  said ;  smiling  sympathiz- 
ingly  upon  the  jury  when  any  juryman  laughed  or  made 
an  inquiry ;  wooing  them  all  the  time  with  his  magnetic 
glances  as  a  lover  might  woo  his  mistress ;  seeming  to 
preside  over  the  whole  scene  with  an  air  of  easy  superior- 
ity ;  exercising  from  the  very  first  moment  an  indefinable 
sway  and  influence  upon  the   minds  of  all  before  and 
around  him.      His   manner  to   the  jury  was   that  of  a 
friend,  a  friend  solicitous  to  help   them  through  their 
tedious  investigation  ;  never  that  of  an  expert  combatant, 
intent  on  victoiy,  and  looking  upon  them  as  only  instru- 
ments for  its  attainment."  ^ 

1 "  Reminiscences  of  Rufus  Choate,"  Parker. 


35 


CHAPTER    III 


THE  MATTER   OF   CROSS-EXAMINATION 


CHAPTER    III 

THE    MATTER    OF    CROSS-EXAMINATION 

If  by  experience  we  have  learned  the  first  lesson  of 
our  art,  —  to  control  our  maimer  toward  the  witness  even 
under  the  most  trying  circumstances,  —  it  then  becomes 
important  that  we  should  turn  our  attention  to  the 
matter  of  our  cross-examination.  By  our  manner  toward 
him  we  may  have  in  a  measure  disarmed  him,  or  at  least 
put  him  off  his  guard,  while  his  memory  and  conscience 
are  being  ransacked  by  subtle  and  searching  questions, 
the  scope  of  which  shall  be  hardly  apparent  to  himself ; 
but  it  is  only  with  the  matter  of  our  cross-examination 
that  we  can  hope  to  destroy  him. 

What  shall  be  our  first  mode  of  attack?  Shall  we 
adopt  the  fatal  method  of  those  we  see  around  us  daily 
in  the  courts,  and  proceed  to  take  the  witness  over  the 
same  story  that  he  has  already  given  our  adversary,  in 
the  absurd  hope  that  he  is  going  to  change  it  in  the 
repetition,  and  not  retell  it  with  double  effect  upon  the 
jury?  Or  shall  we  rather  avoid  carefully  his  original 
story,  except  in  so  far  as  is  necessary  to  refer  to  it  in 
order  to  point  out  its  weak  spots?     Whatever  we   do, 

39 


THE   ART    OF    CROSS-EXAMINATION 

let  us  do  it  with  quiet  dignity,  with  absolute  fairness  to 
the  witness ;  and  let  us  frame  our  questions  in  such  sim- 
ple language  that  there  can  be  no  misunderstanding  or 
confusion.  Let  us  imagine  ourselves  in  the  jury  box,  so 
that  we  may  see  the  evidence  from  their  standpoint.  We 
are  not  trying  to  make  a  reputation  for  ourselves  with 
the  audience  as  "  smart  "  cross-examiners.  We  are  think- 
ing rather  of  our  client  and  our  employment  by  him  to 
win  the  jury  upon  his  side  of  the  case.  Let  us  also  avoid 
asking  questions  recklessly,  without  any  definite  purpose. 
Unskilful  questions  are  worse  than  none  at  all,  and  only 
tend  to  uphold  rather  than  to  destroy  the  witness. 

All  through  the  direct  testimony  of  our  imaginary  wit- 
ness, it  will  be  remembered,  we  were  watching  his  every 
movement  and  expression.  Did  we  find  an  opening  for 
our  cross-examination  ?  Did  we  detect  the  weak  spot  in 
his  narrative  ?  If  so,  let  us  waste  no  time,  but  go  direct 
to  the  point.  It  may  be  that  the  witness's  situation  in 
respect  to  the  parties  or  the  subject-matter  of  the  suit 
should  be  disclosed  to  the  jury,  as  one  reason  why  his 
testimony  has  been  shaded  somewhat  in  favor  of  the  side 
on  which  he  testifies.  It  may  be  that  he  has  a  direct 
interest  in  the  result  of  the  litigation,  or  is  to  receive 
some  indirect  benefit  therefrom.  Or  he  may  have  some 
other  tangible  motive  which  he  can  gently  be  made  to 
disclose.  Perhaps  the  witness  is  only  suffering  from 
that  partisanship,  so  fatal  to  fair  evidence,  of  which  often- 
times the  witness  himself  is  not  conscious.     It  may  even 

40 


THE    MATIER    OK    CROSS-EXAMINATION 

be  that,  if  the  jury  only  knew  the  scanty  means  the  wit- 
ness has  had  for  obtaining  a  correct  and  certain  knowl- 
edge of  tiie  very  facts  to  which  he  has  sworn  so  glibly, 
aided  by  the  adroit  questioning  of  the  opposing  counsel, 
this  in  itself  would  go  far  toward  weakening  the  effect 
of  his  testimony.  It  may  appear,  on  the  other  hand, 
that  the  witness  had  the  best  possible  opportunity  to 
observe  the  facts  he  speaks  of,  but  had  not  the  intelli- 
gence to  observe  these  facts  correctly.  Two  people  may 
witness  the  same  occurrence  and  yet  take  away  with 
them  an  entirely  different  impression  of  it ;  but  each, 
when  called  to  the  witness  stand,  may  be  willing  to  swear 
to  that  impression  as  a  fact.  Obviously,  both  accounts 
of  the  same  transaction  cannot  be  true ;  whose  impres- 
sions were  wrong  ?  Which  had  the  better  opportunity 
to  see  ?  Which  had  the  keener  power  of  perception  ? 
All  this  we  may  very  properly  term  the  matter  of  our 
cross-examination. 

It  is  one  thing  to  have  the  opportunity  of  observation, 
or  even  the  intelligence  to  observe  correctly,  but  it  is  still 
another  to  be  able  to  retain  accurately,  for  any  length  of 
time,  what  we  have  once  seen  or  heard,  and  what  is  per- 
haps more  diflftcult  still  —  to  be  able  to  describe  it  intelli- 
gibly. Many  witnesses  have  seen  one  part  of  a  transaction 
and  heard  about  another  part,  and  later  on  become  con- 
fused in  their  own  minds,  or  perhaps  only  in  their  modes 
of  expression,  as  to  what  they  have  seen  themselves  and 
what  they  have  heard  from   others.     All  witnesses  are 

41 


THE    ART   OF    CROSS-EXAMINATION 

prone  to  exaggerate  —  to  enlarge  or  minimize  the  facts 
to  which  they  take  oath. 

A  very  common  type  of  witness,  met  with  almost 
daily,  is  the  man  who,  having  witnessed  some  event 
years  ago,  suddenly  finds  that  he  is  to  be  called  as  a 
court  witness.  He  immediately  attempts  to  recall  his 
original  impressions ;  and  gradually,  as  he  talks  with  the 
attorney  who  is  to  examine  him,  he  amplifies  his  story 
with  new  details  which  he  leads  himself,  or  is  led,  to 
believe  are  recollections  and  which  he  finally  swears  to 
as  facts.  Many  people  seem  to  fear  that  an  "  I  don't 
know "  answer  will  be  attributed  to  ignorance  on  their 
part.  Although  perfectly  honest  in  intention,  they  are 
apt,  in  consequence,  to  complete  their  story  by  recourse 
to  their  imagination.  And  few  witnesses  fail,  at  least 
in  some  part  of  their  story,  to  entangle  facts  with  their 
own  beliefs  and  inferences. 

All  these  considerations  should  readily  suggest  a  line 
of  questions,  varying  with  each  witness  examined,  that 
will,  if  closely  followed,  be  likely  to  separate  appearance 
from  reality  and  to  reduce  exaggerations  to  their  proper 
proportions.  It  must  further  be  borne  in  mind  that  the 
jury  should  not  merely  see  the  mistake ;  they  should  be 
made  to  appreciate  at  the  time  why  and  whence  it  arose. 
It  is  fresher  then  and  makes  a  more  lasting  effect  than 
if  left  until  the  summing  up,  and  then  drawn  to  the 
attention  of  the  jury. 

The  experienced  examiner  can  usually  tell,  after  a  few 

42 


THE    MATTER    OF    CROSS-EXAMINATION 

simple  questions,  what  line  to  j)ursue.  Picture  the  scene 
in  your  own  mind;  closely  inquire  into  the  sources  of 
the  witness's  information,  and  draw  your  own  conclusions 
as  to  how  his  mistake  arose,  and  why  he  formed  his 
erroneous  impressions.  Exhibit  plainly  your  belief  in 
his  integrity  and  your  desire  to  be  fair  with  him,  and  try 
to  beguile  him  into  being  candid  with  you.  Then  when 
the  particular  foible  which  has  affected  his  testimony  has 
once  been  discovered,  he  can  easily  be  led  to  expose  it 
to  the  jury.  His  mistakes  should  be  drawn  out  often  by 
inference  rather  than  by  direct  question,  because  all  wit- 
nesses have  a  dread  of  self-contradiction.  If  he  sees  the 
connection  between  your  inquiries  and  his  own  story,  he 
will  draw  upon  his  imagination  for  explanations,  before 
you  get  the  chance  to  point  out  to  him  the  inconsistency 
between  his  later  statement  and  his  original  one.  It  is 
often  wise  to  break  the  effect  of  a  witness's  story  by  put- 
ting questions  to  him  that  will  acquaint  the  juiy  at  once 
with  the  fact  that  there  is  another  more  probable  story 
to  be  told  later  on,  to  disclose  to  them  something  of  the 
defence,  as  it  were.  Avoid  the  mistake,  so  common 
among  the  inexperienced,  of  making  much  of  trifling 
discrepancies.  It  has  been  aptly  said  that  "  juries  have 
no  respect  for  small  triumphs  over  a  witness's  self-posses- 
sion or  memory."  Allow  the  loquacious  witness  to  talk 
on ;  he  will  be  sure  to  involve  himself  in  diilficulties  from 
which  he  can  never  extricate  himself.  Some  witnesses 
prove   altogether  too  much;    encourage  them  and  lead 

43 


THE    ART   OF    CROSS-EXAMINATION 

them  by  degrees  into  exaggerations  that  will  conflict 
with  the  common  sense  of  the  jury.  Under  no  circum- 
stances put  a  false  construction  on  the  words  of  a  witness ; 
there  are  few  faults  in  an  advocate  more  fatal  with  a 
jury. 

If,  perchance,  you  obtain  a  really  favorable  answer, 
leave  it  and  pass  quietly  to  some  other  inquiry.  The 
inexperienced  examiner  in  all  probability  will  repeat  the 
question  with  the  idea  of  impressing  the  admission  upon 
his  hearers,  instead  of  reserving  it  for  the  summing  up, 
and  will  attribute  it  to  bad  luck  that  his  witness  corrects 
his  answer  or  modifies  it  in  some  way,  so  that  the  point 
is  lost.  He  is  indeed  a  poor  judge  of  human  nature 
who  supposes  that  if  he  exults  over  his  success  during 
the  cross-examination,  he  will  not  quickly  put  the  witness 
on  his  guard  to  avoid  all  future  favorable  disclosures. 

David  Graham,  a  prudent  and  successful  cross-exam- 
iner, once  said,  perhaps  more  in  jest  than  anything  else, 
"  A  lawyer  should  never  ask  a  witness  on  cross-examina- 
tion a  question  unless  in  the  first  place  he  knew  what 
the  answer  would  be,  or  in  the  second  place  he  didn't 
care."  This  is  something  on  the  principle  of  the  lawyer 
who  claimed  that  the  result  of  most  trials  depended  upon 
which  side  perpetrated  the  greatest  blunders  in  cross- 
examination.  Certainly  no  lawyer  should  ask  a  critical 
question  unless  he  is  sure  of  the  answer. 

Mr.  Sergeant  Ballantine,  in  his  "  Experiences,"  quotes 
an  instance  in  the  trial  of  a  prisoner  on  the  charge  of 

44 


THE    MAT'I'KR    OF    CROSS-EXAMINATION 

homicide,  where  a  once  famous  Engh'sh  barrister  had 
been  induced  by  the  urgency  of  an  attorney,  although 
against  his  own  judgment,  to  ask  a  question  on  cross- 
examination,  the  answer  to  which  convicted  his  client. 
Upon  receiving  the  answer,  he  turned  to  the  attorney  who 
had  advised  him  to  ask  it,  and  said,  emphasizing  every 
word,  "  Go  home ;  cut  your  throat ;  and  when  you  meet 
your  client  in  hell,  beg  his  pardon." 

It  is  well,  sometimes,  in  a  case  where  you  believe  that 
the  witness  is  reluctant  to  develop  the  whole  truth,  so  to 
put  questions  that  the  answers  you  know  will  be  elicited 
may  come  by  way  of  a  surprise  and  in  the  light  of  im- 
probability to  the  jury.  I  remember  a  recent  incident, 
illustrative  of  this  point,  which  occurred  in  a  suit  brought 
to  recover  the  insurance  on  a  large  warehouse  full  of 
goods  that  had  been  burnt  to  the  ground.  The  insur- 
ance companies  had  been  unable  to  find  any  stock-book 
which  would  show  the  amount  of  goods  in  stock  at  the 
time  of  the  fire.  One  of  the  witnesses  to  the  fire  hap- 
pened to  be  the  plaintiff's  bookkeeper,  who  on  the  direct 
examination  testified  to  all  the  details  of  the  fire,  but 
nothing  about  the  books.  The  cross-examination  was 
confined  to  these  few  pointed  questions. 

"  I  suppose  you  had  an  iron  safe  in  your  office,  in 
which  you  kept  your  books  of  account  ?  "  "  Yes,  sir."  — 
"  Did  that  burn  up  ?  "  "  Oh,  no."  —  "  Were  you  present 
when  it  was  opened  after  the  fire  ^  "  ''  Yes.  sir."  —  "  Then 
won't  you  be  good  enough  to  hand  me  the  stock-book 

45 


THE   ART   OF   CROSS-EXAMINATION 

that  we  may  show  the  jury  exactly  what  stock  you  had 
on  hand  at  the  time  of  the  fire  on  which  you  claim  loss  ?  " 
(This  was  the  point  of  the  case  and  the  jury  were  not 
prepared  for  the  answer  which  followed.)  "  I  haven't 
it,  sir."  —  "  What,  haven't  the  stock-book  ?  You  don't 
mean  you  have  lost  it  ?  "  "  It  wasn't  in  the  safe,  sir."  — 
"  Wasn't  that  the  proper  place  for  it  ?  "  "  Yes,  sir."  — 
*'  How  was  it  that  the  book  wasn't  there  ? "  "  It  had 
evidently  been  left  out  the  night  before  the  fire  by  mis- 
take." Some  of  the  jury  at  once  drew  the  inference 
that  the  all-important  stock-book  was  being  suppressed, 
and  refused  to  agree  with  their  fellows  against  the  insur- 
ance companies. 

The  average  mind  is  much  wiser  than  many  suppose. 
Questions  can  be  put  to  awitness  under  cross-examination, 
in  argumentative  form,  often  with  far  greater  effect  upon 
the  minds  of  the  jury  than  if  the  same  line  of  reasoning 
were  reserved  for  the  summing  up.  The  juryman  sees 
the  point  for  himself,  as  if  it  were  his  own  discovery,  and 
clings  to  it  all  the  more  tenaciously.  During  the  cross- 
examination  of  Henry  Ward  Beecher,  in  the  celebrated 
Tilton-Beecher  case,  and  after  Mr.  Beecher  had  denied 
his  alleged  intimacy  with  Mr.  Tilton's  wife.  Judge  Ful- 
lerton  read  a  passage  from  one  of  Mr.  Beecher's  sermons 
to  the  effect  that  if  a  person  commits  a  great  sin,  the 
exposure  of  which  would  cause  misery  to  others,  such  a 
person  would  not  be  justified  in  confessing  it,  merely 
to  relieve  his  own  conscience.     Fullerton  then  looked 

46 


THE    MAFTER    OE    CROSS-EXAMINATION 

straight  into  Mr.  Beecher's  eyes  and  said,  "  Do  you  still 
consider  that  sound  doctrine?"  Mr.  lieecher  replied, 
"  I  do."  The  inference  a  juryman  might  draw  from  this 
question  and  answer  would  constitute  a  subtle  argument 
upon  that  branch  of  the  case. 

The  entire  effect  of  the  testimony  of  an  adverse  wit- 
ness can  sometimes  be  destroyed  by  a  pleasant  little 
passage-at-arms  in  which  he  is  finally  held  up  to  ridicule 
before  the  jury,  and  all  that  he  has  previously  said  against 
you  disappears  in  the  laugh  that  accompanies  him  from 
the  witness  box.  In  a  recent  Metropolitan  Street  Rail- 
way case  a  witness  who  had  been  badgered  rather  per- 
sistently on  cross-examination,  finally  straightened  himself 
up  in  the  witness  chair  and  said  pertly,  "  I  have  not  come 
here  asking  you  to  play  with  me.  Do  you  take  me  for 
Anna  Held  ?  "  ^  "I  was  not  thinking  of  Anna  Held,"  re- 
plied the  counsel  quietly ;  "  supposing  you  try  Ananias  !  " 
The  witness  was  enraged,  the  jury  laughed,  and  the 
lawyer,  who  had  really  made  nothing  out  of  the  witness 
up  to  this  time,  sat  down. 

These  little  triumphs  are,  however,  by  no  means  always 
one-sided.  Often,  if  the  council  gives  him  an  opening,  a 
clever  witness  will  counter  on  him  in  a  most  humiliating 
fashion,  certain  to  meet  with  the  hearty  approval  of  jury 
and  audience.  At  the  Worster  Assizes,  in  England,  a 
case  was  being  tried  which  involved  the  soundness  of  a 

*  This  occurrence  was  at  the  time  when  the  actress  Anna  Held  was  singing 
her  popular  stage  song,  "  Won't  you  come  and  play  with  me." 

47 


THE   ART    OF    CROSS-EXAMINATION 

horse,  and  a  clergyman  had  been  called  as  a  witness  who 
succeeded  only  in  giving  a  rather  confused  account  of 
the  transaction.  A  blustering  counsel  on  the  other  side, 
after  many  attempts  to  get  at  the  facts  upon  cross- 
examination,  blurted  out,  "  Pray,  sir,  do  you  know  the 
difference  between  a  horse  and  a  cow  ?  "  "  I  acknowledge 
my  ignorance,"  replied  the  clergyman  ;  "  I  hardly  do  know 
the  difference  between  a  horse  and  a  cow,  or  between  a 
bull  and  a  bully  —  only  a  bull,  I  am  told,  has  horns,  and 
a  bully  (bowing  respectfully  to  the  counsel),  luckily  for 
me,  has    none."  ^     Reference   is   made  in  a  subsequent 

chapter    to    the    cross-examination    of    Dr.  in  the 

Carlyle  Harris  case,  where  is  related  at  length  a  striking 
example  of  success  in  this  method  of  examination. 

It  may  not  be  uninteresting  to  record  in  this  connec- 
tion one  or  two  cases  illustrative  of  matter  that  is  valu- 
able in  cross-examination  in  personal  damage  suits 
where  the  sole  object  of  counsel  is  to  reduce  the  amount 
of  the  jury's  verdict,  and  to  puncture  the  pitiful  tale  of 
suffering  told  by  the  plaintiff  in  such  cases. 

A  New  York  commission  merchant,  named  Metts, 
sixty-six  years  of  age,  was  riding  in  a  Columbus  Avenue 
open  car.  As  the  car  neared  the  curve  at  Fifty-third 
Street  and  Seventh  Avenue,  and  while  he  was  in  the  act 
of  closing  an  open  window  in  the  front  of  the  car  at  the 
request  of  an  old  lady  passenger,  the  car  gave  a  sudden, 
violent  lurch,  and  he  was  thrown  into  the  street,  receiv- 

^  "  Curiosities  of  Law  and  Lawyers." 
.       48 


THE    MATTER   OF    CROSS-P:XAMINA  HON 

ing  injuries  from  which,  at  the  time  of  the  trial,  he  had 
suffered  for  three  years. 

Counsel  for  the  plaintiff  went  iiUo  his  client's  suffer- 
ings in  great  detail.  I^laintiff  had  had  concussion  of  the 
brain,  loss  of  memory,  bladder  difficulties,  a  broken  leg, 
nervous  prostration,  constant  pain  in  his  back.  And  the 
attempt  to  alleviate  the  pain  attendant  upon  all  these 
difficulties  was  gone  into  with  great  detail.  To  cap  all, 
the  attending  physician  had  testified  that  the  reasonable 
value  of  his  professional  services  was  the  modest  sum  of 
1^2500. 

Counsel  for  the  railroad,  before  cross-examining,  had 
made  a  critical  examination  of  the  doctor's  face  and  bear- 
ing in  the  witness  chair,  and  had  concluded  that,  if  pleas- 
antly handled,  he  could  be  made  to  testify  pretty  nearly 
to  the  truth,  whatever  it  might  be.  He  concluded  to 
spar  for  an  opening,  and  it  came  within  the  first  half- 
dozen  questions :  — 

Counsel.  "  What  medical  name,  doctor,  would  you  give 
to  the  plaintiff's  present  ailment }  " 

Doctor.  "  He  has  what  is  knownas  'traumatic  microsis.' " 

Counsel.  "  J/zV;w/j-,  doctor .?  That  means,  does  it  not, 
the  habit,  or  disease  as  you  may  call  it,  of  making  much 
of  ailments  that  an  ordinary  healthy  man  would  pass  by 
as  of  no  account  ?  " 

Doctor.    "  That  is  right,  sir." 

Counsel {?>\\\^m^.  "I  hope  you  haven't  got  this  dis- 
ease, doctor,  have  you  t  " 

'^  49 


THE   ART    OF    CROSS-EXAMINATION 

Doctor.   "  Not  that  I  am  aware  of,  sir." 

Counsel.  "  Then  we  ought  to  be  able  to  get  a  very 
fair  statement  from  you  of  this  man's  troubles,  ought  we 
not?" 

Doctor.    "  I  hope  so,  sir." 

The  opening  had  been  found;  witness  was  already 
flattered  into  agreeing  with  all  suggestions,  and  warned 
ao^ainst  exagf^eration. 

Counsel.  "  Let  us  take  up  the  bladder  trouble  first. 
Do  not  practically  all  men  who  have  reached  the  age  of 
sixty-six  have  troubles  of  one  kind  or  another  that  result 
in  more  or  less  irritation  of  the  bladder  ? " 

Doctor.    "  Yes,  that  is  very  common  with  old  men." 

Counsel.  "  You  said  Mr.  Metts  was  deaf  in  one  ear. 
I  noticed  that  he  seemed  to  hear  the  questions  asked  him 
in  court  particularly  well ;  did  you  notice  it  ?  " 

Doctor.    "  I  did." 

Counsel.  "  At  the  age  of  sixty-six  are  not  the  majority 
of  men  gradually  failing  in  their  hearing .?  " 

Doctor.   "  Yes,  sir,  frequently." 

Counsel.  "  Frankly,  doctor,  don't  you  think  this  man 
hears  remarkably  well  for  his  age,  leaving  out  the  deaf 
ear  altogether  ? " 

Doctor.   "  I  think  he  does." 

Counsel  (keeping  the  ball  rolling).  "  I  don't  think  you 
have  even  the  first  symptoms  of  this  *  traumatic  microsis,* 
doctor." 

Doctor  (pleased).   "  I  haven't  got  it  at  all." 

50 


THE    MATTER    OK    CROSS-EXAMINATION 

Counsel.  "  You  said  Mr.  Mctts  had  had  concussitm  of 
the  brain.  Has  not  every  boy  who  has  fallen  over  back- 
ward, when  skating  on  the  ice,  and  struck  his  head,  also 
had  what  you  physicians  would  call  '  concussion  of  the 
brain ' .?  " 

Doctor.    '*  Yes,  sir." 

Counsel.  "  But  I  understood  you  to  say  that  this 
plaintiff  had  had,  in  addition,  haemorrhages  of  the  brain. 
Do  you  mean  to  tell  us  that  he  could  have  had  haemor- 
rhages of  the  brain  and  be  alive  to-day .?  " 

Doctor.    "  They  were  microscopic  haemorrhages." 

Counsel.  "  That  is  to  say,  one  would  have  to  take  a 
microscope  to  find  them  }  " 

Doctor.    "  That  is  right." 

Counsel.  "  You  do  not  mean  us  to  understand,  doc- 
tor, that  you  have  not  cured  him  of  these  microscopic 
haemorrhages  ? " 

Doctor.    "  I  have  cured  him  ;  that  is  right." 

Counsel.  "  You  certainly  were  competent  to  set  his 
broken  leg  or  you  wouldn't  have  attempted  it;  did  you 
get  a  good  union  }  " 

Doctor.  "  Yes,  he  has  got  a  good,  strong,  healthy 
leg." 

Counsel  having  elicited,  by  the  "  smiling  method,"  all 
the  required  admissions,  suddenly  changed  his  whole 
bearing  toward  the  witness,  and  continued  pointedly :  — 

Coujtsel  "And  you  said  that  $2500  would  be  a  fair 
and   reasonable  charge  for  your  services.     It  is  three 

51 


THE    ART   OF   CROSS-EXAA4INATION 

years  since  Mr.  Metts  was  injured.  Have  you  sent  him 
no  bill  ? " 

Doctor.    "  Yes,  sir,  I  have." 

Counsel.  "  Let  me  see  it.  (Turning  to  plaintiff's 
counsel.)     Will  either  of  you  let  me  have  the  bill.?" 

Doctor.    "  I  haven't  it,  sir." 

Counsel  (astonished).    "  What  was  the  amount  of  it }  " 

Doctor.    "$iooo." 

Counsel  (savagely).  "  Why  do  you  charge  the  railroad 
company  two  and  a  half  times  as  much  as  you  charge 
the  patient  himself }  " 

Doctor  (embarrassed  at  this  sudden  change  on  part 
of  counsel).  "  You  asked  me  what  my  services  were 
worth." 

Counsel.  "  Didn't  you  charge  your  patient  the  full 
worth  of  your  services .?  " 

Doctor  (no  answer). 

Counsel  (quickly).  "  How  much  have  you  been  J>aid 
on  your  bill  —  on  your  oath  }  " 

Doctor.  "  He  paid  me  ^loo  at  one  time,  that  is,  two 
years  ago ;  and  at  two  different  times  since  he  has  paid 
me  $30." 

Counsel.  "  And  he  is  a  rich  commission  merchant 
down  town  !  "  (And  with  something  between  a  sneer 
and  a  laugh  counsel  sat  down.) 

An  amusing  incident,  leading  to  the  exposure  of  a 
manifest  fraud,  occurred  recently  in  another  of  the  many 
damage    suits  brought  against  the  Metropolitan  Street 

52 


THE    MATTER    OF   CROSS-EXAiMINATION 

Railway  and  growing  out  of  a  collision  between  two  of 
the  company's  electric  cars. 

The  plaintiff,  a  laboring  man,  had  been  thrown  to  the 
street  pavement  from  the  platform  of  the  car  by  the 
force  of  the  collision,  and  had  dislocated  his  shoulder. 
He  had  testified  in  his  own  behalf  that  he  had  been 
permanently  injured  in  so  far  as  he  had  not  been  able 
to  follow  his  usual  employment  for  the  reason  that  he 
could  not  raise  his  arm  above  a  point  parallel  with  his 
shoulder.  Upon  cross-examination  the  attorney  for  the 
railroad  asked  the  witness  a  few  sympathetic  questions 
about  his  sufferings,  and  upon  getting  on  a  friendly 
basis  with  him  asked  him  "  to  be  good  enough  to  show 
the  jury  the  extreme  limit  to  which  he  could  raise  his 
arm  since  the  accident."  The  plaintiff  slowly  and  with 
considerable  difficulty  raised  his  arm  to  the  parallel  of 
his  shoulder.  "  Now,  using  the  same  arm,  show  the 
jury  how  high  you  could  get  it  up  before  the  accident," 
quietly  continued  the  attorney ;  whereupon  the  witness 
extended  his  arm  to  its  full  height  above  his  head,  amid 
peals  of  laughter  from  the  court  and  jury. 

In  a  case  of  murder,  to  which  the  defence  of  insanity 
was  set  up,  a  medical  witness  called  on  behalf  of  the 
accused  swore  that  in  his  opinion  the  accused,  at  the 
time  he  killed  the  deceased,  was  affected  with  a  homi- 
cidal mania,  and  urged  to  the  act  by  an  irresistible  im- 
pulse. The  judge,  not  satisfied  with  this,  first  put  the 
witness   some    questions   on    other    subjects,    and   then 

53 


THE   ART    OF    CROSS-EXAMINATION 

asked,  "  Do  you  think  the  accused  would  have  acted  as 
he  did  if  a  poHceman  had  been  present  ? "  to  which  the 
witness  at  once  answered  in  the  negative.  Thereupon 
the  judge  remarked,  "  Your  definition  of  an  irresistible 
impulse  must  then  be  an  impulse  irresistible  at  all  times 
except  when  a  policeman  is  present." 


54 


CHAPTER   IV 

CROSS-EXAMINATION   OF   THE   PERJURED   WITNESS 


CHAPTER    IV 

CROSS-EXAMINATION    OF   THE    PERJURED   WITNESS 

In  the  preceding  chapters  it  was  attempted  to  offer  a 
few  suggestions,  gathered  from  experience,  for  the  proper 
handling  of  an  honest  witness  who,  through  ignorance  or 
partisanship,  and  more  or  less  unintentionally,  had  testi- 
fied to  a  mistaken  state  of  facts  injurious  to  our  side  of 
the  litigation.  In  the  present  chapter  it  is  proposed  to 
discuss  the  far  more  difficult  task  of  exposing,  by  the 
arts  of  cross-examination,  the  intentional  Fraud,  the  per- 
jured witness.  Here  it  is  that  the  greatest  ingenuity  of 
the  trial  lawyer  is  called  into  play ;  here  rules  help  but 
little  as  compared  with  years  of  actual  experience.  What 
can  be  conceived  more  difficult  in  advocacy  than  the 
task  of  proving  a  witness,  whom  you  may  neither  have 
seen  nor  heard  of  before  he  gives  his  testimony  against 
you,  to  be  a  wilful  perjurer,  as  it  were  out  of  his  own 
mouth  ? 

It  seldom  happens  that  a  witness's  entire  testimony  is 
false  from  beginning  to  end.  Perhaps  the  greater  part 
of  it  is  true,  and  only  the  crucial  part  —  the  point,  how- 
ever, on  which  the  whole    case    may  turn  —  is  wilfully 

57 


THE   ART    OF    CROSS-EXAMINATION 

false.  If,  at  the  end  of  his  direct  testimony,  we  conclude 
that  the  witness  we  have  to  cross-examine  —  to  continue 
the  imaginary  trial  we  were  conducting  in  the  previous 
chapter  —  comes  under  this  class,  what  means  are  we  to 
employ  to  expose  him  to  the  jury? 

Let  us  first  be  certain  we  are  right  in  our  estimate 
of  him  —  that  he  intends  perjury.  Embarrassment  is 
one  of  the  emblems  of  perjury,  but  by  no  means  always 
so.  The  novelty  and  difficulty  of  the  situation  —  being 
called  upon  to  testify  before  a  room  full  of  people,  with 
lawyers  on  all  sides  ready  to  ridicule  or  abuse  —  often 
occasions  embarrassment  in  witnesses  of  the  highest 
integrity.  Then  again  some  people  are  constitutionally 
nervous  and  could  be  nothing  else  when  testifying  in 
open  court.  Let  us  be  sure  our  witness  is  not  of  this 
type  before  we  subject  him  to  the  particular  form  of 
torture  we  have  in  store  for  the  perjurer. 

Witnesses  of  a  low  grade  of  intelligence,  when  they 
testify  falsely,  usually  display  it  in  various  ways :  in  the 
voice,  in  a  certain  vacant  expression  of  the  eyes,  in  a 
nervous  twisting  about  in  the  witness  chair,  in  an  ap- 
parent effort  to  recall  to  mind  the  exact  wording  of  their 
story,  and  especially  in  the  use  of  language  not  suited 
to  their  station  in  life.  On  the  other  hand,  there  is 
something  about  the  manner  of  an  honest  but  ignorant 
witness  that  makes  it  at  once  manifest  to  an  experienced 
lawyer  that  he  is  narrating  only  the  things  that  he  has 
actually  seen  and  heard.      The   expression  of  the  face 

58 


CROSS-EXAMINATION    OF    PKRJURED    WITNESS 

chanfres  with  the  narrative  as  he  rcf;alls  the  scene  to 
his  mind;  he  looks  the  examiner  full  in  the  face;  his 
eye  brightens  as  he  recalls  to  mind  the  various  incidents; 
he  uses  gestures  natural  to  a  man  in  his  station  of  life, 
and  suits  them  to  the  part  of  the  story  he  is  narrating, 
and  he  tells  his  tale  in  his  own  accustomed  language. 
If,  however,  the  manner  of  the  witness  and  the  wording 
of  his  testimony  bear  all  the  earmarks  of  fabrication,  it 
is  often  useful,  as  your  first  question,  to  ask  him  to 
repeat  his  story.  Usually  he  will  repeat  it  in  almost 
identically  the  same  words  as  before,  showing  he  has 
learned  it  by  heart.  Of  course  it  is  possible,  though  not 
probable,  that  he  has  done  this  and  still  is  telling  the 
truth.  Try  him  by  taking  him  to  the  middle  of  his 
story,  and  from  there  jump  him  quickly  to  the  beginning 
and  then  to  the  end  of  it.  If  he  is  speaking  by  rote 
rather  than  from  recollection,  he  will  be  sure  to  succumb 
to  this  method.  He  has  no  facts  with  which  to  associate 
the  wording  of  his  story;  he  can  only  call  it  to  mind 
as  a  whole,  and  not  in  detachments.  Draw  his  attention 
to  other  facts  entirely  disassociated  with  the  main  stor}^ 
as  told  by  himself.  He  will  be  entirely  unprepared  for 
these  new  inquiries,  and  will  draw  upon  his  imagination 
for  answers.  Distract  his  thoughts  again  to  some  new 
part  of  his  main  story  and  then  suddenly,  when  his  mind 
is  upon  another  subject,  return  to  those  considerations 
to  which  you  had  first  called  his  attention,  and  ask  him 
the  same  questions  a  second  time.     He  will  again  fall 

59 


THE    ART    OF    CROSS-EXAMINATION 

back  upon  his  imagination  and  very  likely  will  give  a 
different  answer  from  the  first  —  and  you  have  him  in 
the  net.  He  cannot  invent  answers  as  fast  as  you  can 
invent  questions,  and  at  the  same  time  remember  his 
previous  inventions  correctly ;  he  will  not  keep  his  an- 
swers all  consistent  with  one  another.  He  will  soon 
become  confused  and,  from  that  time  on,  will  be  at  your 
mercy.  Let  him  go  as  soon  as  you  have  made  it 
apparent  that  he  is  not  mistaken,  but  lying. 

An  amusing  account  is  given  in  the  Green  Bag  for 
November,  1891,  of  one  of  Jeremiah  Mason's  cross-exami- 
nations of  such  a  witness.  "  The  witness  had  previously 
testified  to  having  heard  Mason's  client  make  a  certain 
statement,  and  it  was  upon  the  evidence  of  that  state- 
ment that  the  adversary's  case  was  based.  Mr.  Mason 
led  the  witness  round  to  his  statement,  and  again  it  was 
repeated  verbatim.  Then,  without  warning,  he  walked 
to  the  stand,  and  pointing  straight  at  the  witness  said, 
in  his  high,  impassioned  voice,  '  Let's  see  that  paper 
you've  got  in  your  waistcoat  pocket ! '  Taken  com- 
pletely by  surprise,  the  witness  mechanically  drew  a  paper 
from  the  pocket  indicated,  and  handed  it  to  Mr.  Mason. 
The  lawyer  slowly  read  the  exact  words  of  the  witness 
in  regard  to  the  statement,  and  called  attention  to  the 
fact  that  they  were  in  the  handwriting  of  the  lawyer  on 
the  other  side. 

"  '  Mr.  Mason,  how  under  the  sun  did  you  know  that 
paper   was    there  t '    asked   a   brother   lawyer.      '  Well,' 

60 


CROSS-EXAMINATION    OK    PKRJUREI)    WITNESS 

replied  Mr.  Mason,  '  I  thought  he  gave  that  part  of  his 
testimony  just  as  if  he'd  heard  it,  and  I  noticed  every 
time  he  repeated  it  he  j)ut  his  hand  to  his  waistcoat 
pocket,  and  then  let  it  fall  again  when  he  got  through.'  " 

Daniel  Webster  considered  Mason  the  greatest  lawyer 
that  ever  practised  at  the  New  England  Bar.  He  said 
of  him,  "  I  would  rather,  after  my  own  experience,  meet 
all  the  lawyers  I  have  ever  known  combined  in  a  case, 
than  to  meet  him  alone  and  single-handed.'*  Mason  was 
always  reputed  to  have  possessed  to  a  marked  degree 
"  the  instinct  for  the  weak  point  "  in  the  witness  he  was 
cross-examining. 

If  perjured  testimony  in  our  courts  were  confined  to 
the  ignorant  classes,  the  work  of  cross-examining  them 
would  be  a  comparatively  simple  matter,  but  unfortunately 
for  the  cause  of  truth  and  justice  this  is  far  from  the 
case.  Perjury  is  decidedly  on  the  increase,  and  at  the 
present  time  scarcely  a  trial  is  conducted  in  which  it 
does  not  appear  in  a  more  or  less  flagrant  form.  Noth- 
ing in  the  trial  of  a  cause  is  so  difficult  as  to  expose  the 
perjury  of  a  w^itness  whose  intelligence  enables  him  to 
hide  his  lack  of  scruple.  There  are  various  methods  of 
attempting  it,  but  no  uniform  rule  can  be  laid  down  as  to 
the  proper  manner  to  be  displayed  toward  such  a  witness. 
It  all  depends  upon  the  individual  character  you  have  to 
unmask.  In  a  large  majority  of  cases  the  chance  of 
success  will  be  greatly  increased  by  not  allowing  the  wit- 
ness to  see  that  you  suspect  him,  before  you  have  led  him 

6i 


THE   ART    OF    CROSS-EXAMINATION 

to  commit  himself  as  to  various  matters  with  which  you 
have  reason  to  beheve  you  can  confront  him  later  on. 

Two  famous  cross-examiners  at  the  Irish  Bar  were 
Sergeant  Sullivan,  afterwards  Master  of  the  Rolls  in 
Ireland,  and  Sergeant  Armstrong.  Barry  O'Brien,  in 
his  "  Life  of  Lord  Russell,"  describes  their  methods. 
"Sullivan,"  he  says,  "approached  the  witness  quite  in 
a  friendly  way,  seemed  to  be  an  impartial  inquirer  seek- 
ing information,  looked  surprised  at  what  the  witness 
said,  appeared  even  grateful  for  the  additional  light 
thrown  on  the  case.  '  Ah,  indeed !  Well,  as  you  have 
said  so  much,  perhaps  you  can  help  us  a  little  further. 
Well,  really,  my  Lord,  this  is  a  very  intelligent  man.' 
So  playing  the  witness  with  caution  and  skill,  drawing 
him  stealthily  on,  keeping  him  completely  in  the  dark 
about  the  real  point  of  attack,  the  '  little  sergeant ' 
waited  until  the  man  was  in  the  meshes,  and  then  flew 
at  him  and  shook  him  as  a  terrier  would  a  rat. 

"  The  '  big  Sergeant '  (Armstrong)  had  more  humor 
and  more  power,  but  less  dexterity  and  resource.  His 
great  weapon  was  ridicule.  He  laughed  at  the  witness 
and  made  everybody  else  laugh.  The  witness  got  con- 
fused and  lost  his  temper,  and  then  Armstrong  pounded 
him  like  a  champion  in  the  ring." 

In  some  cases  it  is  wise  to  confine  yourself  to  one  or 
two  salient  points  on  which  you  feel  confident  you  can 
get  the  witness  to  contradict  himself  out  of  his  own 
mouth.     It  is  seldom   useful   to  press  him  on  matters 

62 


CROSS-EXAMINATION    OF    PERJURED    WITNESS 

with  which  he  is  famiHar.  It  is  the  safer  course  to 
question  him  on  circumstances  connected  with  his  story, 
but  to  which  he  lias  not  already  testified  and  for  which 
he  would  not  be  Hkely  to  prepare  himself. 

A  simple  but  instructive  example  of  cross-examination, 
conducted  along  these  lines,  is  quoted  from  Judge  J.  W. 
Donovan's  "  Tact  in  Court."  It  is  doubly  interesting  in 
that  it  occurred  in  Abraham  Lincoln's  first  defence  at  a 
murder  trial. 

"  Grayson  was  charged  with  shooting  Lockwood  at  a 
camp-meeting,  on  the  evening  of  August  9,  18 — ,  and 
with  running  away  from  the  scene  of  the  killing,  which 
was  witnessed  by  Sovine.  The  proof  was  so  strong  that, 
even  with  an  excellent  previous  character,  Grayson  came 
very  near  being  lynched  on  two  occasions  soon  after  his 
indictment  for  murder. 

"  The  mother  of  the  accused,  after  failing  to  secure 
older  counsel,  finally  engaged  young  Abraham  Lincoln, 
as  he  was  then  called,  and  the  trial  came  on  to  an  early 
hearing.  No  objection  was  made  to  the  jury,  and  no 
cross-examination  of  witnesses,  save  the  last  and  only 
important  one,  who  swore  that  he  knew  the  parties,  saw 
the  shot  fired  by  Grayson,  saw  him  run  away,  and  picked 
up  the  deceased,  who  died  instantly. 

"  The  evidence  of  guilt  and  identity  was  morally  cer- 
tain. The  attendance  was  large,  the  interest  intense. 
Grayson's  mother  began  to  wonder  why  '  Abraham  re- 
mained silent  so  long  and  why  he  didn't  do  something ! ' 

63 


THE   ART    OF    CROSS-EXAMINATION 

The  people  finally  rested.  The  tall  lawyer  (Lincoln) 
stood  up  and  eyed  the  strong  witness  in  silence,  without 
books  or  notes,  and  slowly  began  his  defence  by  these 
questions : 

''Lincoln.   'And  you  were  with  Lockwood  just  before 
and  saw  the  shooting  ?  ' 

"  Witness.    '  Yes.' 

"  Lincoln.    '  And  you  stood  very  near  to  them } ' 

"  Witness.    '  No,  about  twenty  feet  away.' 

"  Lincoln.    '  May  it  not  have  been  ten  feet  ? ' 

"  Witness.    '  No,  it  was  twenty  feet  or  more' 

"  Lincoln.    '  In  the  open  field  1  * 

"  Witness.    '  No,  in  the  timber.' 

"  Lincoln.    '  What  kind  of  timber.?  ' 

"  Witness.    '  Beech  timber.' 

"  Lincoln.    '  Leaves  on  it  are  rather  thick  in  August  ? ' 

"  Wit7iess.    '  Rather.' 

"  Lincoln.  '  And  you  think  this  pistol  was  the  one  used  t ' 

"  Witness.    '  It  looks  like  it.' 

"  Lincohi.    '  You  could  see  defendant  shoot  —  see  how 
the  barrel  hung,  and  all  about  it  ?  ' 

"  Witness.    '  Yes.' 

"  Lincohi.   '  How  near  was  this  to  the  meeting  place  .f* ' 

"  Witness.   '  Three-quarters  of  a  mile  away.' 

"  Lincoln.   '  Where  were  the  lights  ? ' 

"  Witness.    '  Up  by  the  minister's  stand.' 

"  Lincoln.    '  Three-quarters  of  a  mile  away.? ' 

"  Witness.    '  Yes,  —  I  answered  ye  twiste' 

64 


CROSS-EXAMINATION    OF    PERJURP:D    WITNESS 

^"•Lincoln.  'Did  you  not  sec  a  candle  there,  with 
Lockwood  or  Grayson  ? ' 

"  Witness.   '  No  !  what  would  we  want  a  candle  for  ? ' 

"  Lincoln.    '  How,  then,  did  you  see  the  shooting? ' 

"  Witness.    '  By  moonlight !  '  (defiantly). 

"■  Liiicoln.  'You  saw  this  shooting  at  ten  at  night  — 
in  beech  timber,  three-quarters  of  a  mile  from  the  lights 
—  saw  the  pistol  barrel  —  saw  the  man  fire  —  saw  it 
twenty  feet  away  —  saw  it  all  by  moonlight  ?  Saw  it 
nearly  a  mile  from  the  camp  lights  ? ' 

"  Witness.   '  Yes,  I  told  you  so  before.' 

"  The  interest  was  now  so  intense  that  men  leaned 
forward  to  catch  the  smallest  syllable.  Then  the  lawyer 
drew  out  a  blue-covered  almanac  from  his  side  coat 
pocket  —  opened  it  slowly  —  offered  it  in  evidence  — 
showed  it  to  the  jury  and  the  court  —  read  from  a  page 
with  careful  deliberation  that  the  moon  on  that  night 
was  unseen  and  only  arose  at  one  the  next  morning. 

"  Following  this  climax  Mr.  Lincoln  moved  the  arrest 
of  the  perjured  witness  as  the  real  murderer,  saying : 
'  Nothing  but  a  motive  to  clear  himself  could  have  in- 
duced him  to  swear  away  so  falsely  the  life  of  one  who 
never  did  him  harm  ! '  With  such  determined  emphasis 
did  Lincoln  present  his  showing  that  the  court  ordered 
Sovine  arrested,  and  under  the  strain  of  excitement  he 
broke  down  and  confessed  to  being  the  one  who  fired 
the  fatal  shot  himself,  but  denied  it  was  intentional." 
A  difficult  but  extremely  effective  method  of  exposing 

E  65 


THE   ART    OF    CROSS-EXAMINATION 

a  certain  kind  of  perjurer  is  to  lead  him  gradually  to  a 
point  in  his  stoiy,  where  —  in  his  answer  to  the  final 
question  "  Which  ?  "  —  he  will  have  to  choose  either  one 
or  the  other  of  the  only  two  explanations  left  to  him, 
either  of  which  would  degrade  if  not  entirely  discredit 
him  in  the  eyes  of  the  jury. 

The  writer  once  heard  the  Hon.  Joseph  H.  Choate 
make  very  telling  use  of  this  method  of  examination. 
A  stock-broker  was  being  sued  by  a  married  woman  for 
the  return  of  certain  bonds  and  securities  in  the  broker's 
possession,  which  she  alleged  belonged  to  her.  Her 
husband  took  the  witness-stand  and  swore  that  he  had 
deposited  the  securities  with  the  stock-broker  as  collat- 
eral against  his  market  speculations,  but  that  they  did 
not  belong  to  him,  and  that  he  was  acting  for  himself 
and  not  as  agent  for  his  wife,  and  had  taken  her  securi- 
ties unknown  to  her. 

It  was  the  contention  of  Mr.  Choate  that,  even  if  the 
bonds  belonged  to  the  wife,  she  had  either  consented  to 
her  husband's  use  of  the  bonds,  or  else  was  a  partner 
with  him  in  the  transaction.  Both  of  these  contentions 
were  denied  under  oath  by  the  husband. 

Mr.  Choate.  "  When  you  ventured  into  the  realm  of 
speculations  in  Wall  Street  I  presume  you  contemplated 
the  possibility  of  the  market  going  against  you,  did  you 
not.?" 

Witness.  "Well,  no,  Mr.  Choate,  I  went  into  Wall 
Street  to  make  money,  not  to  lose  it." 

66 


CROSS-EXAMINATION    OF    PERJURED    WirNESS 

Mr.  Choale.  "Quite  so,  sir;  but  you  will  admit,  will 
you  not,  that  sometimes  the  stock  market  goes  contrary 
to  expectations  ? " 

Witness.  "  Oh,  yes,  I  suppose  it  does." 

Mr.  Choate.  "  You  say  the  bonds  were  not  your  own 
property,  but  your  wife's  ?  " 

Witness.    "  Yes,  sir." 

Mr.  CJioate.  "  And  you  say  that  she  did  not  lend  them 
to  you  for  purposes  of  speculation,  or  even  know  you  had 
possession  of  them  .?  " 

Witness.    "  Yes,  sir." 

Mr.  Choate.  "  You  even  admit  that  when  you  depos- 
ited the  bonds  with  your  broker  as  collateral  against 
your  stock  speculations,  you  did  not  acquaint  him  with 
the  fact  that  they  were  not  your  own  property  t " 

Witness.  "  I  did  not  mention  whose  property  they 
were,  sir." 

Mr.  CJioate  (in  his  inimitable  style).  "  Well,  sir,  in  the 
event  of  the  market  going  against  you  and  your  collat- 
eral being  sold  to  meet  your  losses,  whom  did  you  i^itend 
to  cheat,  your  broker  or  your  wife  ?  " 

The  witness  could  give  no  satisfactory  answer,  and 
for  once  a  New  York  jury  w^as  found  who  were  willing 
to  give  a  verdict  against  the  customer  and  in  favor  of  a 
Wall  Street  broker. 

In  the  great  majority  of  cases,  however,  the  most  skil- 
ful efforts  of  the  cross-examiner  will  fail  to  lead  the 
witness  into  such  "  traps  "  as  these.     If  you  have  accom- 

^7 


THE    ART    OF    CROSS-EXAMINATION 

plished  one  such  cotip,  be  content  with  the  point  you 
have  made ;  do  not  try  to  make  another  with  the  same 
witness ;  sit  down  and  let  the  witness  leave  the  stand. 

But  let  us  suppose  you  are  examining  a  witness  with 
whom  no  such  climax  is  possible.  Here  you  will  require 
infinite  patience  and  industry.  Try  to  show  that  his 
story  is  inconsistent  with  itself,  or  with  other  known 
facts  in  the  case,  or  with  the  ordinary  experience  of  man- 
kind. There  is  a  wonderful  power  in  persistence.  If 
you  fail  in  one  quarter,  abandon  it  and  try  something 
else.  There  is  surely  a  weak  spot  somewhere,  if  the 
story  is  perjured.  Frame  your  questions  skilfully.  Ask 
them  as  if  you  wanted  a  certain  answer,  when  in  reality 
you  desire  just  the  opposite  one.  "  Hold  your  own  tem- 
per while  you  lead  the  witness  to  lose  his  "  is  a  Golden 
Rule  on  all  such  occasions.  If  you  allow  the  witness  a 
chance  to  give  his  reasons  or  explanations,  you  may  be 
sure  they  will  be  damaging  to  you,  not  to  him.  If  you 
can  succeed  in  tiring  out  the  witness  or  driving  him  to 
the  point  of  sullenness,  you  have  produced  the  effect  of 
lying. 

But  it  is  not  intended  to  advocate  the  practice  of 
lengthy  cross-examinations  because  the  effect  of  them, 
unless  the  witness  is  broken  down,  is  to  lead  the  jury  to 
exaggerate  the  importance  of  evidence  given  by  a  witness 
who  requires  so  much  cross-examination  in  the  attempt 
to  upset  him.  "  During  the  Tichborne  trial  for  perjury, 
a  remarkable  man  named  Luie  was  called  to  testify.     He 

68 


CROSS-EXAMINATION    OF    PERJURED    WITNESS 

was  a  shrewd  witness  and  told  his  talc  with  wonderful 
precision  and  apparent  accuracy.  That  it  was  untrue 
there  could  hardly  be  a  question,  but  that  it  could  be 
proved  untrue  was  extremely  doubtful  and  an  almost 
hopeless  task.  It  was  an  improbable  story,  but  still  was 
not  an  absolutely  impossible  one.  If  true,  however,  the 
claimant  was  the  veritable  Roger  Tichborne,  or  at  least 
the  probabilities  would  be  so  immensely  in  favor  of  that 
supposition  that  no  jury  would  agree  in  finding  that  he 
was  Arthur  Orton.  His  manner  of  giving  his  evidence 
was  perfect.  After  the  trial  one  of  the  jurors  was  asked 
what  he  thought  of  Luie's  evidence,  and  if  he  ever 
attached  any  importance  to  his  story.  He  replied  that 
at  the  close  of  the  evidence-in-chief  he  thought  it  so 
improbable  that  no  credence  could  be  given  to  it.  But 
after  Mr.  Hawkins  had  been  at  him  for  a  day  and  could 
not  shake  him,  I  began  to  think,  if  such  a  cross-examiner 
as  that  cannot  touch  him,  there  must  be  something  in 
what  he  says,  and  I  began  to  waver.  I  could  not  under- 
stand how  it  was  that,  if  it  was  all  lies,  it  did  not  break 
down  under  such  able  counsel."  ^ 

The  presiding  judge,  whose  slightest  word  is  weightier 
than  the  eloquence  of  counsel,  will  often  interrupt  an 
aimless  and  prolonged  cross-examination  with  an  abrupt, 

"  Mr. ,  I  think  we  are  wasting  time,"  or  "  I  shall 

not  allow  you  to  pursue  that  subject  further,"  or  "  I  can- 
not see  the  object  of  this  examination."     This  is  a  set- 

1  '*  Hints  on  Advocacy,"  Harris. 
69 


THE   ART   OF   CROSS-EXAMINATION 

back  from  which  only  the  most  experienced  advocate  can 
readily  recover.  Before  the  judge  spoke,  the  jury,  per- 
haps, were  already  a  little  tired  and  inattentive  and 
anxious  to  finish  the  case;  they  were  just  in  the  mood  to 
agree  with  the  remark  of  his  Honor,  and  the  "  atmosphere 
of  the  case,"  as  I  have  always  termed  it,  was  fast  becom- 
ing unfavorable  to  the  delinquent  attorney's  client.  How 
important  a  part  in  the  final  outcome  of  every  trial  this 
atmosphere  of  the  case  usually  plays!  Many  jurymen 
lose  sight  of  the  parties  to  the  litigation  —  our  clients  — 
in  their  absorption  over  the  conflict  of  wits  going  on 
between  their  respective  lawyers. 

It  is  in  criminal  prosecutions  where  local  politics  are 
involved,  that  the  jury  system  is  perhaps  put  to  its  sever- 
est test.  The  ordinary  juryman  is  so  apt  to  be  blinded 
by  his  political  prejudices  that  where  the  guilt  or  inno- 
cence of  the  prisoner  at  the  Bar  turns  upon  the  question 
as  to  whether  the  prisoner  did  or  did  not  perform  some 
act,  involving  a  supposed  advantage  to  his  political  party, 
the  jury  is  apt  to  be  divided  upon  political  lines. 

About  ten  years  ago,  when  a  wave  of  political  reform 
was  sweeping  over  New  York  City,  the  Good  Govern- 
ment Clubs  caused  the  arrest  of  about  fifty  inspectors 
of  election  for  violations  of  the  election  laws.  These 
men  were  all  brought  up  for  trial  in  the  Supreme  Court 
criminal  term,  before  Mr.  Justice  Barrett.  The  prison- 
ers were  to  be  defended  by  various  leading  trial  lawyers, 
and  everything  depended  upon  the  result  of  the  first  few 

70 


CROSS-EXAMINATION    OF    PERJURED   WITNESS 

cases  tried.  If  these  trials  resulted  in  acquittals,  it  was 
anticipated  that  there  would  be  acquittals  all  aloiv^  the 
line ;  if  the  first  offenders  i)ut  on  trial  were  convicted 
and  sentenced  to  severe  terms  in  prison,  the  great 
majority  of  the  others  would  plead  guilty,  and  few  would 
escape. 

At  that  time  the  county  of  New  York  was  divided, 
for  purposes  of  voting,  into  1067  election  districts, 
and  on  an  average  perhaps  250  votes  were  cast  in 
each  district.  An  inspector  of  one  of  the  election 
districts  was  the  first  man  called  for  trial.  The  charge 
against  him  was  the  failure  to  record  correctly  the  vote 
cast  in  his  district  for  the  Republican  candidate  for 
alderman.  In  this  particular  election  district  there 
had  been  167  ballots  cast,  and  it  was  the  duty  of  the 
inspectors  to  count  them  and  return  the  result  of  their 
count  to  police  headquarters. 

At  the  trial  twelve  respectable  citizens  took  the  wit- 
ness chair,  one  after  another,  and  affirmed  that  they  lived 
in  the  prisoner's  election  district,  and  had  all  cast  their 
ballots  on  election  day  for  the  Republican  candidate.  The 
official  count  for  that  district,  signed  by  the  prisoner, 
was  then  put  in  evidence,  which  read:  Democratic 
votes,  167;  Republican,  o.  There  were  a  number  of 
v^itnesses  called  by  the  defence  who  were  Democrats. 
The  case  began  to  take  on  a  political  aspect,  which  was 
likely  to  result  in  a  divided  jury  and  no  conviction,  since 
it  had  been  shown  that  the  prisoner  had  a  most  excellent 

71 


THE    ART    OF    CROSS-EXAMINATION 

reputation  and  had  never  been  suspected  of  wrong-doing 
before.  Finally  the  prisoner  himself  was  sworn  in  his 
own  behalf. 

It  was  the  attempt  of  the  cross-examiner  to  leave  the 
witness  in  such  a  position  before  the  jury  that  no  matter 
what  their  politics  might  be,  they  could  not  avoid  con- 
victing him.     There  were  but  five  questions  asked. 

Cotnisel.  "  You  have  told  us,  sir,  that  you  have  a  wife 
and  seven  children  depending  upon  you  for  support.  I 
presume  your  desire  is  not  to  be  obliged  to  leave  them ; 
is  it  not  ?  " 

Prisoner.    "  Most  assuredly,  sir." 

Counsel.  "  Apart  from  that  consideration  I  presume 
you  have  no  particular  desire  to  spend  a  term  of  years 
in  Sing  Sing  prison  }  " 

Prisoner.    "  Certainly  not,  sir." 

Counsel.  "  Well,  you  have  heard  twelve  respectable 
citizens  take  the  witness-stand  and  swear  they  voted 
the  Republican  ticket  in  your  district,  have  you  not .?  " 

Prisoner.    "  Yes,  sir." 

Counsel  (pointing  to  the  jury).  "  And  you  see  these 
twelve  respectable  gentlemen  sitting  here  ready  to  pass 
judgment  upon  the  question  of  your  liberty,  do  you 
not?" 

Prisoner.    "  I  do,  sir." 

Counsel  (impressively,  but  quietly).     "  Well,  now,  Mr. 

,  you  will  please  explain  to  these  twelve  gentlemen 

(pointing  to  jury)  how  it  was  that  the  ballots  cast  by  the 

72 


CROSS-EXAMINATION    OF    PERJURED    WITNESS 

other  twelve  gentlemen  were  not  counted  by  you,  and 
then  you  can  take  your  hat  and  walk  right  fjut  of  the 
court  room  a  free  man." 

The  witness  hesitated,  cast  down  his  eyes,  but  made 
no  answer  —  and  counsel  sat  down. 

Of  course  a  conviction  followed.  The  prisoner  was 
sentenced  to  five  years  in  state  prison.  During  the 
following  few  days  nearly  thirty  defendants,  indicted  for 
similar  offences,  pleaded  guilty,  and  the  entire  work  of 
the  court  was  completed  within  a  few  weeks.  There 
was  not  a  single  acquittal  or  disagreement. 

Occasionally,  when  sufficient  knowledge  of  facts  about 
the  witness  or  about  the  details  of  his  direct  testimony 
can  be  correctly  anticipated,  a  trap  may  be  set  into 
which  even  a  clever  witness,  as  in  the  illustration  that 
follows,  will  be  likely  to  fall. 

During  the  lifetime  of  Dr.  J.  W.  Ranney  there  were 
few  physicians  in  this  country  who  were  so  frequently 
seen  on  the  witness-stand,  especially  in  damage  suits. 
So  expert  a  witness  had  he  become  that  Chief  Justice 
Van  Brunt  many  years  ago  is  said  to  have  remarked, 
"  Any  lawyer  who  attempts  to  cross-examine  Dr.  Ran- 
ney is  a  fool."  A  case  occurred  a  few  years  before  Dr. 
Ranney  died,  however,  where  a  failure  to  cross-examine 
would  have  been  tantamount  to  a  confession  of  judg- 
ment, and  the  trial  lawyer  having  the  case  in  charge, 
though  fully  aware  of  the  dangers,  was  left  no  alterna- 
tive,  and   as   so  often  happens  where   "  fools    msh    in," 

73 


THE    ART    OF    CROSS-EXAMINATION 

made  one  of  those  lucky  "  bull's  eyes  "  that  is  perhaps 
worth  recording. 

It  was  a  damage  case  brought  against  the  city  by  a 
lady  who,  on  her  way  from  church  one  spring  morning, 
had  tripped  over  an  obscure  encumbrance  in  the  street, 
and  had,  in  consequence,  been  practically  bedridden 
for  the  three  years  leading  up  to  the  day  of  trial.  She 
was  brouo-ht  into  the  court  room  in  a  chair  and  was 
placed  in  front  of  the  jury,  a  pallid,  pitiable  object,  sur- 
rounded by  her  women  friends,  who  acted  upon  this  occa- 
sion as  nurses,  constantly  bathing  her  hands  and  face 
with  ill-smelling  ointments,  and  administering  restora- 
tives, with  marked  effect  upon  the  jury. 

Her  counsel.  Ex-chief  Justice  Noah  Davis,  claimed 
that  her  spine  had  been  permanently  injured,  and  asked 
the  jury  for  $50,000  damages. 

It  appeared  that  Dr.  Ranney  had  been  in  constant 
attendance  upon  the  patient  ever  since  the  day  of  her 
accident.  He  testified  that  he  had  visited  her  some 
three  hundred  times  and  had  examined  her  minutely  at 
least  two  hundred  times  in  order  to  make  up  his  mind 
as  to  the  absolutely  correct  diagnosis  of  her  case,  which 
he  was  now  thoroughly  satisfied  was  one  of  genuine 
disease  of  the  spinal  marrow  itself.  Judge  Davis  asked 
him  a  few  preliminary  questions,  and  then  gave  the 
doctor  his  head  and  let  him  "turn  to  the  jury  and  tell 
them  all  about  it."  Dr.  Ranney  spoke  uninterruptedly 
for  nearly  three-quarters  of  an  hour.     He  described  in 

74 


CROSS-EXAMINATION    OF   PERJURED    WITNESS 

detail  the  sufferings  of  his  patient  since  she  had  Ijeen 
under  his  care;  his  efforts  to  relieve  her  pain  ;  the  hope- 
less nature  of  her  malady.  He  then  proceeded  in  a 
most  impressive  way  to  picture  to  the  jury  the  gradual 
and  relentless  progress  of  the  disease  as  it  assumed  the 
form  of  creeping  paralysis,  involving  the  destruction  of 
one  organ  after  another  until  death  became  a  blessed 
relief.  At  the  close  of  this  recital,  without  a  question 
more,  Judge  Davis  said  in  a  calm  but  triumphant  tone, 
"  Do  you  wish  to  cross-examine  ?  " 

Now  the  point  in  dispute  —  there  was  no  defence  on 
the  merits  —  was  the  nature  of  the  patient's  malady. 
The  city's  medical  witnesses  were  unanimous  that  the 
lady  had  not,  and  could  not  have,  contracted  spinal  dis- 
ease from  the  slight  injury  she  had  received.  They 
styled  her  complaint  as  "hysterical,"  existing  in  the 
patient's  mind  alone,  and  not  indicating  nor  involving 
a  single  diseased  organ;  but  the  jury  evidently  all  be- 
lieved Dr.  Ranney,  and  were  anxious  to  render  a  verdict 
on  his  testimony.  He  must  be  cross-examined.  Abso- 
lute failure  could  be  no  worse  than  silence,  though  it 
was  evident  that,  along  expected  lines,  questions  relat- 
ing to  his  direct  evidence  would  be  worse  than  useless. 
Counsel  was  well  aware  of  the  doctor's  reputed  fertility 
of  resource,  and  quickly  decided  upon  his  tactics. 

The  cross-examiner  first  directed  his  questions  toward 
developing  before  the  jury  the  fact  that  the  witness  had 
been  the  medical  expert  for  the  New  York,  New  Haven, 

75 


THE    ART    OF    CROSS-EXAMINATION 

and  Hartforcl  R.  R.  thirty-five  years,  for  the  New  York 
Central  R.  R.  forty  years,  for  the  New  York  and  Har- 
lem River  R.  R.  twenty  years,  for  the  Erie  R.  R.  fifteen 
years,  and  so  on  until  the  doctor  was  forced  to  admit 
that  he  was  so  much  in  court  as  a  witness  in  defence  of 
these  various  railroads,  and  was  so  occupied  with  their 
affairs  that  he  had  but  comparatively  little  time  to  devote 
to  his  reading  and  private  practice. 

Counsel  (perfectly  quietly).  "  Are  you  able  to  give  us, 
doctor,  the  name  of  any  medical  authority  that  agrees 
with  you  when  you  say  that  the  particular  group  of 
symptoms  existing  in  this  case  points  to  one  disease  and 
one  only  }  " 
Doctor.  "  Oh,  yes,  Dr.  Ericson  agrees  with  me." 
Counsel.   "  Who  is  Dr.  Ericson,  if  you  please  ?  " 

Doctor  (with  a  patronizing  smile).      "Well,  Mr.  , 

Ericson  was  probably  one  of  the  most  famous  surgeons 
that  England  has  ever  produced."  (There  was  a  titter 
in  the  audience  at  the  expense  of  counsel.) 
Counsel.  "What  book  has  he  written  }  " 
Doctor  (still  smiling).  "  He  has  written  a  book  called 
'  Ericson  on  the  Spine,'  which  is  altogether  the  best 
known  work  on  the  subject."  (The  titter  among  the 
audience  grew  louder.) 

Counsel.    "  When  was  this  book  published  1 " 
Doctor.    "  About  ten  years  ago." 

Counsel.    "  Well,  how  is  it  that  a  man  whose  time  is 
so  much  occupied    as   you  have  told  us  yours   is,  has 

76 


CROSS-EXAMINATION    OF    PERJURKD    wriNKSS 

leisure  enough  to  look  up  medical  authorities  to  see  if 
they  agree  with  him  ?  " 

Doctor  (fairly  beaming  on  counsel).     "  Well,  Mr. , 

to  tell  you  the  truth,  I  have  often  heard  of  yrm,  and  I 
half  suspected  you  would  ask  me  some  such  foolish  ques- 
tion ;  so  this  morning  after  my  breakfast,  and  before 
starting  for  court,  I  took  down  from  my  library  my  copy 
of  Ericson's  book,  and  found  that  he  agreed  entirely  with 
my  diagnosis  in  this  case."  (Loud  laughter  at  expense 
of  counsel,  in  which  the  jury  joined.) 

G^^^/^i"*?/ (reaching  under  the  counsel  table  and  taking 
up  his  own  copy  of  "Ericson  on  the  Spine,"  and  walking 
deliberately  up  to  the  witness).  "  Won't  you  be  good 
enough  to  point  out  to  me  where  Ericson  adopts  your 
view  of  this  case }  " 

Doctor  (embarrassed).  "  Oh,  I  can't  do  it  now ;  it  is  a 
very  thick  book." 

Counsel  (still  holding  out  the  book  to  the  witness). 
"  But  you  forget,  doctor,  that  thinking  I  might  ask  you 
some  such  foolish  question,  you  examined  your  volume  of 
Ericson  this  very  morning  after  breakfast  and  before 
coming  to  court." 

Doctor  (becoming  more  embarrassed  and  still  refusing 
to  take  the  book).    "  I  have  not  time  to  do  it  now^" 

Counsel.  "-Time!  why  there  is  all  the  time  in  the 
world." 

Doctor,    (no  answer). 

Counsel  and  witness  eye  each  other  closely. 

.77 


THE    ART    OF    CROSS-EXAMINATION 

Counsel  (sitting  down,  still  eying  witness).  "  I  am  sure 
the  court  will  allow  me  to  suspend  my  examination  until 
you  shall  have  had  time  to  turn  to  the  place  you  read 
this  morning  in  that  book,  and  can  reread  it  now  aloud 
to  the  jury." 

Doctor   (no  answer). 

The  court  room  was  in  deathly  silence  for  fully  three 
minutes.  The  witness  wotildiit  say  anything,  counsel 
for  plaintiff  didnt  dare  to  say  anything,  and  counsel  for 
the  city  didnt  want  to  say  anything ;  he  saw  that  he 
had  caught  the  witness  in  a  manifest  falsehood,  and  that 
the  doctor's  whole  testimony  was  discredited  with  the 
jury  unless  he  could  open  to  the  paragraph  referred  to 
which  counsel  well  knew  did  not  exist  in  the  whole  work 
of  Ericson. 

At  the  expiration  of  a  few  minutes,  Mr.  Justice 
Barrett,  who  was  presiding  at  the  trial,  turned  quietly  to 
the  witness  and  asked  him  if  he  desired  to  answer  the 
question,  and  upon  his  replying  that  he  did  not  intend  to 
answer  it  any  further  than  he  had  already  done,  he  was 
excused  from  the  witness-stand  amid  almost  breathless 
silence  in  the  court  room.  As  he  passed  from  the  wit- 
ness chair  to  his  seat,  he  stooped  and  whispered  into  the 

ear  of  counsel,  "  You  are  the est  most  impertinent 

man  I  have  ever  met." 

After  a  ten  days'  trial  the  jury  were  unable  to  forget 
the  collapse  of  the  plaintiff's  principal  witness,  and  failed 
to  agree  upon  a  verdict. 

78 


CHAPTER   V 

CROSS-EXAMINATION   OF   EXPERTS 


CHAPTER  V 

CROSS-EXAMINATION    OF    EXPERTS 

In  these  days  when  it  is  impossible  to  know  everything, 
but  it  becomes  necessary  for  success  in  any  avocation  to 
know  something  of  everything  and  everything  of  some- 
thing, the  expert  is  more  and  more  called  upon  as  a  wit- 
ness both  in  civil  and  criminal  cases.  In  these  times 
of  specialists,  their  services  are  often  needed  to  aid  the 
jury  in  their  investigations  of  questions  of  fact  relating  to 
subjects  with  which  the  ordinary  man  is  not  acquainted. 

The  cross-examination  of  various  experts,  whether 
medical,  handwriting,  real  estate,  or  other  specialists,  is 
a  subject  of  growing  importance,  but  it  is  intended  in 
this  chapter  merely  to  make  some  suggestions,  and  to 
give  a  few  illustrations  of  certain  methods  that  may  be 
adopted  with  more  or  less  success  in  the  examination  of 
this  class  of  witnesses. 

It  has  become  a  matter  of  common  observation  that 
not  only  can  the  honest  opinions  of  different  experts  be 
obtained  upon  opposite  sides  of  the  same  question,  but 
also  that  dishonest  opinions  may  be  obtained  upon  dif- 
ferent sides  of  the  same  question. 
F  8i 


THE    ART    OF    CROSS-EXAMINATION 

Attention  is  also  called  to  the  distinction  between 
mere  matters  of  scientific  fact  and  mere  matters  of  opin- 
ion. For  example :  certain  medical  experts  may  be 
called  to  establish  certain  medical  facts  which  are  not 
mere  matters  of  opinion.  On  such  facts  the  experts 
could  not  disagree ;  but  in  the  province  of  mere  opinion 
it  is  well  known  that  the  experts  differ  so  much  among 
themselves  that  but  little  credit  is  given  to  mere  expert 
opinion  as  such. 

As  a  general  thing,  it  is  unwise  for  the  cross-examiner 
to  attempt  to  cope  with  a  specialist  in  his  own  field  of 
inquiry.  Lengthy  cross-examinations  along  the  lines  of 
the  expert's  theory  are  usually  disastrous  and  should 
rarely    be    attempted. 

Many  lawyers,  for  example,  undertake  to  cope  with  a 
medical  or  handwriting  expert  on  his  own  ground, — 
surgeiy,  correct  diagnosis,  or  the  intricacies  of  penman- 
ship. In  some  rare  instances  (more  especially  with 
poorly  educated  physicians)  this  method  of  cross-ques- 
tioning is  productive  of  results.  More  frequently,  how- 
ever, it  only  affords  an  opportunity  for  the  doctor  to 
enlarge  upon  the  testimony  he  has  already  given,  and  to 
explain  what  might  otherwise  have  been  misunderstood 
or  even  entirely  overlooked  by  the  jury.  Experience  has 
led  me  to  believe  that  a  physician  should  rarely  be  cross- 
examined  on  his  own  specialty,  unless  the  importance  of 
the  case  has  warranted  so  close  a  study  by  the  counsel  of 
the  particular  subject  under  discussion  as  to  justify  the 

82 


CROSS-EXAMINATION    OF    EXPERTS 

experiment ;  and  tlicn  only  when  the  lawyer's  research 
of  the  medical  authorities,  which  he  should  have  with 
him  in  court,  convinces  him  that  he  can  expose  the  doc- 
tor's erroneous  conclusions,  not  only  to  himself,  but  to  a 
jury  who  will  not  readily  comprehend  the  abstract  theo- 
ries of  physiology  upon  which  even  the  medical  profes- 
sion itself  is  divided. 

On  the  other  hand,  some  careful  and  judicious  ques- 
tions, seeking  to  bring  out  separate  facts  and  separate 
points  from  the  knowledge  and  experience  of  the  expert, 
which  will  tend  to  support  the  theory  of  the  attorney's 
own  side  of  the  case,  are  usually  productive  of  good 
results.  In  other  words,  the  art  of  the  cross-examiner 
should  be  directed  to  bring  out  such  scientific  facts  from 
the  knowledge  of  the  expert  as  will  help  his  own  case, 
and  thus  tend  to  destroy  the  weight  of  the  opinion  of  the 
expert  given  against  him. 

Another  suggestion  which  should  always  be  borne  in 
mind  is  that  no  question  should  be  put  to  an  expert 
which  is  in  any  way  so  broad  as  to  give  the  expert  an 
opportunity  to  expatiate  upon  his  own  views,  and  thus 
afford  him  an  opportunity  in  his  answer  to  give  his 
reasons,  in  his  own  way,  for  his  opinions,  which  counsel 
calling  him  as  an  expert  might  not  otherwise  have  fully 
brought  out  in  his  examination. 

It  was  in  the  trial  of  Dr.  Buchanan  on  the  charo-e  of 
murdering  his  wife,  that  a  single,  ill-advised  question  put 
upon  cross-examination  to  the  physician  who  had  attended 

83 


THE    ART    OF    CROSS-EXAMINATION 

Mrs.  Buchanan  upon  her  death-bed,  and  who  had  given  it 
as  his  opinion  that  her  death  was  due  to  natural  causes, 
which  enabled  the  jury,  after  twenty-four  hours  of  dispute 
among  themselves,  finally  to  agree  against  the  prisoner 
on  a  verdict  of  murder  in  the  first  degree,  resulting  in 
Buchanan's  execution. 

The  charge  against  Dr.  Buchanan  was  that  he  had 
poisoned  his  wife  —  a  woman  considerably  older  than 
himself,  and  who  had  made  a  will  in  his  favor  —  with 
morphine  and  atropine,  each  drug  being  used  in  such 
proportion  as  to  effectually  obliterate  the  group  of  symp- 
toms attending  death  when  resulting  from  the  use  of  either 
drug  alone. 

At  Buchanan's  trial  the  district  attorney  found  him- 
self in  the  extremely  awkward  position  of  trying  to  per- 
suade a  jury  to  decide  that  Mrs.  Buchanan's  death  was, 
beyond  all  reasonable  doubt,  the  result  of  an  overdose  of 
morphine  mixed  with  atropine  administered  by  her  hus- 
band, although  a  respectable  physician,  who  had  attended 
her  at  her  death-bed,  had  given  it  as  his  opinion  that  she 
died  from  natural  causes,  and  had  himself  made  out  a 
death  certificate  in  which  he  attributed  her  death  to 
apoplexy. 

It  was  only  fair  to  the  prisoner  that  he  should  be  given 
the  benefit  of  the  testimony  of  this  physician.  The  Dis- 
trict Attorney,  therefore,  called  the  doctor  to  the  witness- 
stand  and  questioned  him  concerning  the  symptoms  he 
had  observed  during  his  treatment  of  Mrs.  Buchanan  just 

84 


CROSS-EXAMINATION    OF    EXPERTS 

prior  to  her  death,  and  developed  the  fact  that  the  doctor 
had  made  out  a  death  certificate  in  which  he  had  certified 
that  in  his  opinion  apoplexy  was  the  sole  cause  of  death. 
The  doctor  was  then  turned  over  to  the  lawyers  for  the 
defence  for  cross-examination. 

One  of  the  prisoner's  counsel,  who  had  far  more  knowl- 
edge of  medicine  than  of  the  art  of  cross-examination,  was 
assigned  the  important  duty  of  cross-examining  this  wit- 
ness. After  badgering  the  doctor  for  an  hour  or  so  with 
technical  medical  questions  more  or  less  remote  from  the 
subject  under  discussion,  and  tending  to  show  the  erudi- 
tion of  the  lawyer  who  was  conducting  the  examination 
rather  than  to  throw  light  upon  the  inquiry  uppermost  in 
the  minds  of  the  jury,  the  cross-examiner  finally  repro- 
duced the  death  certificate  and  put  it  in  evidence,  and 
callino:  the  doctor's  attention  to  the  statement  therein 
made  —  that  death  was  the  result  of  apoplexy  —  ex- 
claimed, while  flourishing  the  paper  in  the  air:  — 

"  Now,  doctor,  you  have  told  us  what  this  lady's  symp- 
toms were,  you  have  told  us  what  you  then  believed  was 
the  cause  of  her  death  ;  I  now  ask  you,  has  anything 
transpired  since  Mrs.  Buchanan's  death  which  would 
lead  you  to  change  your  opinion  as  it  is  expressed  in 
this  paper  ? " 

The  doctor  settled  back  in  his  chair  and  slowly  re- 
peated the  question  asked:  "Has  —  anything  —  tran- 
spired —  since  —  Mrs.  Buchanan's  —  death  —  which  — 
would  —  lead  —  me  —  to  —  change  —  my  —  opinion  —  as 

85 


THE   ART    OF    CROSS-EXAMINATION 

it  —  is  — expressed  —  in  —  this  —  paper  ?  "  The  witness 
turned  to  the  judge  and  inquired  if  in  answer  to  such 
a  question  he  would  be  allowed  to  speak  of  matters 
that  had  come  to  his  knowledge  since  he  wrote  the  cer- 
tificate. The  judge  replied :  "  The  question  is  a  broad 
one.  Counsel  asks  you  if  you  know  of  miy  reaso7t  why 
you  should  change  your  former  opinion  ? " 

The  witness  leaned  forward  to  the  stenographer  and 
requested  him  to  read  the  question  over  again.  This 
was  done.  The  attention  of  everybody  in  court  was  by 
this  time  focussed  upon  the  witness,  intent  upon  his 
answer.  It  seemed  to  appear  to  the  jury  as  if  this  must 
be  the  turning  point  of  the  case. 

The  doctor  having  heard  the  question  read  a  second 
time,  paused  for  a  moment,  and  then  straightening  him- 
self in  his  chair,  turned  to  the  cross-examiner  and  said, 
"  I  wish  to  ask  you  a  question.  Has  the  report  of  the 
chemist  telling  of  liis  discovery  of  atropine  and  mor- 
phine in  the  contents  of  this  woman's  stomach  been 
offered  in  evidence  yet } "  The  court  answered,  "  It 
has  not." 

"  One  more  question,"  said  the  doctor,  "  Has  the  report 
of  the  pathologist  yet  been  received  in  evidence .?  "  The 
court  replied,  "  No." 

"  Thenl'  said  the  doctor,  rising  in  his  chair,  "  I  can 
answer  your  question  truthfully,  that  as  yet  in  the  ab- 
sence of  the  pathological  report  and  in  the  absence  of 
the  chemical  report  I  know  of  no  legal  evidence  which 

86 


CROSS-EXAMINATION    OF    EXPERTS 

would  cause  me  to  alter  the  opinion  exj)res.sed  in  my 
death  certificate." 

It  is  impossible  to  exaggerate  the  impression  made 
upon  the  court  and  jury  by  tliese  answers.  AW  the 
advantage  that  the  prisoner  might  have  derived  from 
the  original  death  certificate  was  entirely  swept  away. 

The  trial  lasted  for  fully  two  weeks  after  this  episode. 
When  the  jury  retired  to  their  consultation  room  at  the 
end  of  the  trial,  they  found  they  were  utterly  unable  to 
agree  upon  a  verdict.  They  argued  among  themselves 
for  twenty-four  hours  without  coming  to  any  conclusion. 
At  the  expiration  of  this  time  the  jury  returned  to  the 
court  room  and  asked  to  have  the  testimony  of  this  doc- 
tor reread  to  them  by  the  stenographer.  The  stenog- 
rapher, as  he  read  from  his  notes,  reproduced  the  entire 
scene  which  had  been  enacted  two  weeks  before.  The 
jury  retired  a  second  time  and  immediately  agreed  upon 
their  verdict  of  death. 

The  cross-examinations  of  the  medical  witnesses  in  the 
Buchanan  case  conducted  by  this  same  "  Medico-legal 
Wonder"  were  the  subject  of  very  extended  newspaper 
praise  at  the  time,  one  daily  paper  devoting  the  entire 
front  page  of  its  Sunday  edition  to  his  portrait. 

How  expert  witnesses  have  been  discredited  with  juries 
in  the  past,  should  serve  as  practical  guides  for  the  future. 
The  whole  effect  of  the  testimony  of  an  expert  witness 
may  sometimes  effectually  be  destroyed  by  putting  the 
witness  to  some  unexpected  and  offhand  test  at  the  trial, 

87 


THE    ART    OF    CROSS-EXAMINATION 

as  to  his  experience,  his  ability  and  discrimination  as  an 
expert,  so  that  in  case  of  his  failure  to  meet  the  test  he 
can  be  held  up  to  ridicule  before  the  jury,  and  thus  the 
laughter  at  his  expense  will  cause  the  jury  to  forget  any- 
thing of  weight  that  he  has  said  against  you. 

I  have  always  found  this  to  be  the  most  effective 
method  to  cross-examine  a  certain  type  of  professional 
medical  witnesses  now  so  frequently  seen  in  our  courts. 
A  striking  instance  of  the  efficacy  of  this  style  of  cross- 
examination  was  experienced  by  the  writer  in  a  damage 
suit  against  the  city  of  New  York,  tried  in  the  Supreme 
Court  sometime  in  1887. 

A  very  prominent  physician,  president  of  one  of  our 
leading  clubs  at  the  time,  but  now  dead,  had  advised  a 
woman  who  had  been  his  housekeeper  for  thirty  years, 
and  who  had  broken  her  ankle  in  consequence  of  step- 
ping into  an  unprotected  hole  in  the  street  pavement,  to 
bring  suit  against  the  city  to  recover  ^40,000  damages. 
There  was  very  little  defence  to  the  principal  cause  of 
action :  the  hole  in  the  street  was  there,  and  the  plaintiff 
had  stepped  into  it ;  but  her  right  to  recover  substantial 
damages  was  vigorously  contested. 

Her  principal,  in  fact  her  only  medical  witness  was 
her  employer,  the  famous  physician.  The  doctor  testi- 
fied to  the  plaintiff's  sufferings,  described  the  fracture  of 
her  ankle,  explained  how  he  had  himself  set  the  broken 
bones  and  attended  the  patient,  but  affirmed  that  all  his 
efforts  were  of  no  avail  as  he  could  bring  about  nothing 


CROSS-EXAMINATION    OF    EXPERTS 

but  a  most  iin[)(jrfc'ct  union  of  the  bones,  and  that  his 
housekeeper,  a  most  respectable  and  estimable  lady, 
would  be  lame  for  life.  His  manner  on  the  witness- 
stand  was  exceedingly  dignified  and  frank,  and  evidently 
impressed  the  jury.  A  large  verdict  of  fully  $15,000 
was  certain  to  be  the  result  unless  this  witness's  hold 
upon  the  jury  could  be  broken  on  his  cross-examination. 
There  was  no  reason  known  to  counsel  why  this  ankle 
should  not  have  healed  promptly,  as  such  fractures  usu- 
ally do;  but  how  to  make  the  jury  realize  the  fact  was 
the  question.  The  intimate  personal  acquaintance  be- 
tween the  cross-examiner  and  the  witness  was  another 
embarrassment. 

The  cross-examination  began  by  showing  that  the 
witness,  although  a  graduate  of  Harvard,  had  not  im- 
mediately entered  a  medical  school,  but  on  the  contrary 
had  started  in  business  in  Wall  Street,  had  later  been 
manager  of  several  business  enterprises,  and  had  not 
begun  the  study  of  medicine  until  he  was  forty  years 
old.  The  examination  then  continued  in  the  most 
amiable  manner  possible,  each  question  being  asked  in 
a  tone  almost  of  apology. 

Counsel.  "  We  all  know,  doctor,  that  you  have  a  large 
and  lucrative  family  practice  as  a  general  practitioner; 
but  is  it  not  a  fact  that  in  this  great  city,  where  accidents 
are  of  such  common  occurrence,  surgical  cases  are  usu- 
ally taken  to  the  hospitals  and  cared  for  by  experienced 
surgeons  t  " 

89 


THE    ART    OF   CROSS-EXAMINATION 

Doctor.    "  Yes,  sir,  that  is  so." 

Counsel.  "  You  do  not  even  claim  to  be  an  experienced 
surgeon  ?  " 

Doctor.  "  Oh,  no,  sir.  I  have  the  experience  of  any- 
general  practitioner." 

Counsel.  "  What  would  be  the  surgical  name  for  the 
particular  form  of  fracture  that  this  lady  suffered  ? " 

Doctor.  "  What  is  known  as  a  '  Potts  fracture  of  the 
ankle.' " 

Counsel.  "  That  is  a  well-recognized  form  of  fracture, 
is  it  not  ?  " 

Doctor.   "  Oh,  yes." 

Cozinsel  (chancing  it).  "  Would  you  mind  telling  the 
jury  about  when  you  had  a  fracture  of  this  nature  in 
your  regular  practice,  the  last  before  this  one } " 

Doctor  (dodging).  "  I  should  not  feel  at  liberty  to 
disclose   the   names   of   my   patients." 

Counsel  (encouraged).  "  I  am  not  asking  for  names 
and  secrets  of  patients  —  far  from  it.  I  am  only  asking 
for  the  date,  doctor ;  but  on  your  oath." 

Doctor.   "  I  couldn't  possibly  give  you  the  date,  sir." 

Counsel  (still  feeling  his  way).  "  Was  it  within  the 
year  preceding  this  one  t  " 

Doctor  (hesitating).    "  I  would  not  like  to  say,  sir." 

Counsel  (still  more  encouraged).  "  I  am  sorry  to  press 
you,  sir ;  but  I  am  obliged  to  demand  a  positive  answer 
from  you  whether  or  not  you  had  had  a  similar  case  of 
'Potts  fracture  of  the  ankle'  the  year  preceding  this  one?" 

90 


CROSS-EXAMINATION    OK    EXPP:RTS 

Doctor.    "  Well,  IK),  I  cannot  remember  that  I  had." 

Counsel.    "  Did  yuu  have  one  two  years  before?" 

Doctor.    "  I  cannot  say." 

Cou7ise/  {ioYcing  the  issue).  "  Did  you  have  one  within 
five  years  preceding  the  plaintiff's  case  ?  " 

Doctor.    "  I  am  unable  to  say  positively." 

Co2insel.  (appreciating  the  danger  of  pressing  tne  in- 
quiry further,  but  as  a  last  resort).  "  Will  you  swear  that 
you  ever  had  a  case  of  '  Potts  fracture '  within  your  own 
practice  before  this  one .?  I  tell  you  frankly,  if  you  say 
you  have,  I  shall  ask  you  day  and  date,  time,  place,  and 
circumstance." 

Doctor  (much  embarrassed).  "  Your  question  is  an 
embarrassing  one.  I  should  want  time  to  search  my 
memory." 

Counsel.  "  I  am  only  asking  you  for  your  best  memory 
as  a  gentleman,  and  under  oath." 

Doctor.  "  If  you  put  it  that  way,  I  will  say  I  cannot 
now  remember  of  any  case  previous  to  the  one  in  ques- 
tion, excepting  as  a  student  in  the  hospitals." 

Counsel  "  But  does  it  not  require  a  great  deal  of 
practice  and  experience  to  attend  successfully  so  serious 
a  fracture  as  that  involving  the  ankle  joint  ?  " 

Doctor.    "  Oh,  yes." 

Counsel.  "  Well,  doctor,  speaking  frankly,  won't  you 
admit  that  '  Potts  fractures '  are  daily  being  attended  to 
in  our  hospitals  by  experienced  men,  and  the  use  of  the 
ankle  fully  restored  in  a  few  months'  time  1 " 

91 


THE   ART    OF   CROSS-EXAMINATION 

Doctor.  "  That  may  be,  but  much  depends  upon  the 
age  of  the  patient ;  and  again,  in  some  cases,  nothing 
seems  to  make  the  bones  unite." 

Counsel  i^iooy^Xi^  under  the  table  and  taking  up  the 
two  lower  bones  of  the  leg  attached  and  approaching 
the  witness).  "  Will  you  please  take  these,  doctor,  and 
tell  the  jury  whether  in  life  they  constituted  the  bones 
of  a  woman's  leg  or  a  man's  leg  ?  " 

Doctor.    "  It  is  difficult  to  tell,  sir." 

Counsel.  "  What,  can't  you  tell  the  skeleton  of  a 
woman's  leg  from  a  man's,  doctor  ? " 

Doctor.  "  Oh,  yes,  I  should  say  it  was  a  woman's 
leg." 

Counsel  (smiling  and  looking  pleased).  "  So  in  your 
opinion,  doctor,  this  was  a  woman s  leg.?"  [It  was  a 
woman's  leg.] 

Doctor  (observing  counsel's  face  and  thinking  he  had 
made  a  mistake).  "  Oh,  I  beg  your  pardon,  it  is  a  man's 
leg,  of  course.     I  had  not  examined  it  carefully." 

By  this  time  the  jury  were  all  sitting  upright  in  their 
seats  and  evinced  much  amusement  at  the  doctor's  in- 
creasing embarrassment. 

Counsel  (still  smiling).  "  Would  you  be  good  enough 
to  tell  the  jury  if  it  is  the  right  leg  or  the  left  leg .? " 

Doctor  (quietly,  but  hesitatingly).  [It  is  very  difficult 
for  the  inexperienced  to  distinguish  right  from  left] 
"  This  is  the  right  leg." 

Cotaisel  (astonished).    "  What  do  you  say,  doctor  ?  " 

92 


CROSS-EXAMINATION    OF    EXPERTS 

Doctor  (much  confused).  "  Pardon  mc,  it  is  the  left 
leg." 

Counsel.  "  Were  you  not  right  the  first  time,  doctor. 
Is  it  not  in  fact  the  right  leg?  " 

Doctor.    "  I  don't  think  so ;  no,  it  is  the  left  leg." 

Counsel  (again  stooping  and  bringing  from  under  the 
table  the  bones  of  the  foot  attached  together,  and  hand- 
ing it  to  the  doctor).  "  Please  put  the  skeleton  of  the 
foot  into  the  ankle  joint  of  the  bones  you  already  have 
in  your  hand,  and  then  tell  me  whether  it  is  the  right  or 
left  leg." 

Doctor  (confidently).  "  Yes,  it  is  the  left  leg,  as  I  said 
before." 

Counsel  (uproariously).  "  But,  doctor,  don't  you  see 
you  have  inserted  the  foot  into  the  knee  joint?  Is  that 
the  way  it  is  in  life }  " 

The  doctor,  amid  roars  of  laughter  from  the  jury,  in 
which  the  entire  court  room  joined,  hastily  readjusted 
the  bones  and  sat  blushing  to  the  roots  of  his  hair. 
Counsel  waited  until  the  laughter  had  subsided,  and 
then  said  quietly,  "  I  think  I  will  not  trouble  you 
further,  doctor." 

This  incident  is  not  the  least  bit  exaggerated ;  on  the 
contrary,  the  impression  made  by  the  occurrence  is  diffi- 
cult to  present  adequately  on  paper.  Counsel  on  both 
sides  proceeded  to  sum  up  the  case,  and  upon  the  part 
of  the  defence  no  allusion  whatsoever  was  made  to  the 
incident  just  described.     The  jury  appreciated  the  fact. 

93 


THE    ART    OF    CROSS-EXAMINATION 

and  returned  a  verdict  for  the  plaintiff  for  ^240.  Next 
day  the  learned  doctor  wrote  a  four-page  letter  of  thanks 
and  appreciation  that  the  results  of  his  "stage  fright"  had 
not  been  spread  before  the  jury  in  the  closing  speech. 

An  estimate  of  the  susceptibility  of  occasional  juries 
drawn  from  some  country  panels  to  have  their  attention 
diverted  from  the  facts  in  a  case  by  their  fondness  for 
entertainment  has  at  times  induced  attorneys  to  try  the 
experiment  of  framing  their  questions  on  cross-examina- 
tion of  medical  experts  so  that  the  jury  will  be  amused 
by  the  questions  themselves  and  will  overlook  the  damag- 
ing testimony  given  by  a  serious-minded  and  learned 
opposing  medical  witness. 

An  illustration  of  this  was  afforded  not  long  ago  by  a 
case  brought  by  a  woman  against  the  Trustees  of  the 
New  York  and  Brooklyn  Bridge.  The  plaintiff,  while 
alighting  from  a  bridge  car,  stepped  into  the  space 
between  the  car  and  the  bridge  platform  and  fell  up  to 
her  armpits.  She  claimed  that  she  had  sustained  injuries 
to  her  ribs,  lungs,  and  chest,  and  that  she  was  suffering 
from  resultant  pleurisy  and  intercostal  neuritis.  A  spe- 
cialist on  nerve  injuries,  called  by  the  defence,  had  testi- 
fied that  there  was  nothing  the  matter  with  the  plaintiff, 
as  he  had  tested  her  with  the  stethoscope  and  had  made  a 
thorough  examination,  had  listened  at  her  chest  to  detect 
such  "  rales  "  as  are  generally  left  after  pleurisy,  and  had 
failed  to  find  any  lesions  or  injuries  to  the  pleural  nerves 
whatsoever. 

94 


CROSS-EXAMINATION    OF    ?:XPERTS 

The  attorney  for  the  plaintiff,  Mirabeau  L.  Towns  of 
Brooklyn,  had  evidently  correctly  "sized  up"  the  par- 
ticular jury  who  were  to  decide  his  case,  and  proceeded 
to  cross-examine  the  doctor  in  rhyme^  which  the  learned 
physician,  absorbed  in  his  task  of  defending  himself,  did 
not  notice  until  the  laughter  of  the  jury  advised  him  that 
he  was  being  made  ridiculous. 

Mr.  Towns  arose  and  said :  — 

Q.  "  Now,  doctor,  please  listen  to  me.  You  say  for 
the  sake  of  a  modest  fee  you  examined  the  plaintiff  most 
carefully  ?  " 

A.    "  I  tried  to  do  my  duty,  sir." 

Q.   "  But  you  saw  no  more  than  you  wanted  to  see  ?  " 

A.   "  What  do  you  mean,  sir  ?  " 

Q.   "  Well,  you  laid  your  head  upon  her  chest  ?  " 

A.  "  I  did." 

Q.    "  That  was  a  most  delightful  test .?  " 

A.  "  Well,  it  is  the  common  way  of  ascertaining  if 
there  is  anything  abnormal  in  the  lungs." 

Q.  "  And  you  mean  to  say,  doctor,  that  if  your  ears 
are  as  good  as  mine,  and  with  your  knowledge  of  medi- 
cine, a  mangled  pleura's  rale  and  rattle  you'd  hear  as 
plain  as  guns  in  battle  ?  " 

A.  "I  mean  to  say  this,  and  no  more, — that  it  would 
be  impossible,  if  a  person  was  suffering  from  a  lacerated 
pleura,  for  me  not  to  detect  it  by  the  test  I  made." 

Q.   "  Now,  you  did  this  most  carefully  t " 

A.   "I  did." 

95 


THE    ART   OF    CROSS-EXAMINATION 

Q.    "  For  you  had  to  earn  your  expert's  fee  ? " 

A.  "  Of  course  I  was  paid  for  my  examination,  but 
that  had  nothing  to  do  with  it.  I  want  you  to  under- 
stand that  I  made  my  examination  most  conscientiously." 

Q.  "  Can  you  swear  that  you  saw  no  more  than  you 
wanted  to  see  ?  " 

A.    "  1  saw  nothing." 

Q.  "  And  each  of  her  ribs,  on  your  oath  as  a  scholar, 
was  as  good  and  sound  as  a  daddy's  dollar  ?  " 

(Outburst  of  laughter,  and  the   judge  used  his  gavel. 

Dr. appealed  to  the  court  for  protection,  but  Mr. 

Towns  continued.) 

Q.    "You  say  you  think  she  was  malingering.f* " 

A.    "  I  do." 

Q.  "  So  when  the  poor  creature  ventured  to  cope 
with  you  and  your  science  and  your  stethoscope,  for 
her  you'll  acknowledge  there  was  little  hope  ? " 

A.  "  I  have  come  here  to  tell  the  truth,  and  I  main- 
tain that  it  would  be  very  hard  for  a  young  woman 
of  her  type  to  deceive  me." 

(Renewed  laughter  and  the  judge's  gavel  fell  with 
greater  force.  Counsel  was  admonished,  but  he  con- 
tinued.) 

Q.  "  She  might  scream  in  anguish  till  the  end  of  her 
breath,  your  opinion  once  formed  you'd  hold  until  death  .^^ '' 

Not  answered. 

Q.  "  Though  she  fell  through  a  hole  clear  up  to 
her  arm,  and  that's  quite  a  fall,  it  did  her  no  harm ;  in 

96 


CROSS-EXAMINATION    OF    P:XPERTS 

fact,  if  she'd  fallen  from  Mount  Chimborazo,  you'd  say 
she's  unhurt  and  contuiue  to  say  so.  Such  a  fall  from 
such  a  height,  one  might  observe,  might  break  all  her 
ribs,  but  ne'er  injure  a  nerve  ?  " 

The  Doctor.  "  Your  honor,  I  don't  wish  to  be  made 
ridiculous  by  this  gentleman,  and  I  protest  against  his 
questions,  they  arc  unfair." 

Before  the  court  could  rule,  Mr.  Tov^ns  continued :  — 

Q.  "  And  you  hope  to  be  seized  with  the  dance  of 
St.  Vitus  if  you  found  on  the  plaintiff  intercostal 
neuritis }  " 

The  Doctor.    "  Your  Honor,  I  refuse  to  answer." 

Here  the  judge  interfered  and  admonished  counsel 
that  he  had  pursued  this  line  of  inquiry  long  enough. 

That  Mr.  Towns  was  correct  in  his  estimate  of  this 
absurd  panel  of  jurors  was  shown  by  a  very  large  verdict 
in  favor  of  his  client,  and  by  a  request  signed  by  each 
one  of  the  jurors  personally  that  counsel  would  send 
them  a  copy  of  his  cross-examination  of  the  defendant's 
doctor. 

As  distinguished  from  the  lengthy,  though  doubtless 
scientific,  cross-examination  of  experts  in  handwriting 
with  which  the  profession  has  become  familiar  in  many 
recent  famous  trials  that  have  occurred  in  this  city,  the 
following  incident  cannot  fail  to  serve  as  a  forcible  illus- 
tration of  the  suQ^aestions  laid  down  as  to  the  cross- 
examination  of  specialists.  It  would  almost  be  tiiought 
improbable  in  a  romance,  yet  every  word  of  it  is  true. 
G  97 


THE   ART    OF    CROSS-EXAMINATION 

In  the  trial  of  Ellison  for  felonious  assault  upon 
William  Henriques,  who  had  brought  Mr.  Ellison's 
attentions  to  his  daughter,  Mrs.  Lila  Noeme,  to  a  sud- 
den close  by  forbidding  him  his  house,  the  authenticity 
of  some  letters,  alleged  to  have  been  written  by  Mrs. 
Noeme  to  Mr.  Ellison,  was  brought  in  question.  The 
lady  herself  had  strenuously  denied  that  the  alleged 
compromising  documents  had  ever  been  written  by  her. 
Counsel  for  Ellison,  the  late  Charles  Brooke,  Esq.,  had 
evidently  framed  his  whole  cross-examination  of  Mrs. 
Noeme  upon  these  letters,  and  made  a  final  effort  to 
introduce  them  in  evidence  by  calling  Professor  Ames, 
the  well-known  expert  in  handwriting.  He  deposed  to 
having  closely  studied  the  letter  in  question,  in  con- 
junction with  an  admittedly  genuine  specimen  of  the 
lady's  handwriting,  and  gave  it  as  his  opinion  that  they 
were  all  written  by  the  same  hand.  Mr.  Brooke  then 
offered  the  letters  in  evidence,  and  was  about  to  read 
them  to  the  jury  when  the  assistant  district  attorney 
asked  permission  to  put  a  few  questions. 

District  Attorney.  "  Mr.  Ames,  as  I  understood  you, 
you  were  given  only  one  sample  of  the  lady's  genuine 
handwriting,  and  you  base  your  opinion  upon  that  single 
exhibit,  is  that  correct  ?  " 

Witness.  "  Yes,  sir,  there  was  only  one  letter  given  me, 
but  that  was  quite  a  long  one,  and  afforded  me  great 
opportunity  for  comparison." 

District  Attorjiey.   "  Would  it  not  assist  you  if  you 

98 


CROSS-EXAMINATION    OF    KXPKRIS 

were  given  a  number  of  her  letters  with  which  to  make 
a  comparison  ? " 

Witness.  "Oh,  yes,  the  more  samples  1  had  of  genu- 
ine handwriting,  the  more  valuable  my  conclusion  would 
become." 

District  Attorney  (taking  from  among  a  bundle  of 
papers  a  letter,  folding  down  the  signature  and  handing 
it  to  the  witness).  "  Would  you  mind  taking  this  one 
and  comparing  it  with  the  others,  and  then  tell  us  if 
that  is  in  the  same  handwriting?" 

Witness  (examining  paper  closely  for  a  few  minutes). 
*'  Yes,  sir,  I  should  say  that  was  the  same  handwriting." 

District  Attorney.  "  Is  it  not  a  fact,  sir,  that  the  same 
individual  may  write  a  variety  of  hands  upon  different 
occasions  and  with  different  pens  ?  " 

Witness.    "  Oh,  yes,  sir;  they  might  vary  somewhat." 

District  Attorney  (taking  a  second  letter  from  his  files, 
also  folding  over  the  signature  and  handing  to  the  wit- 
ness). "  Won't  you  kindly  take  this  letter,  also,  and  com- 
pare it  with  the  others  you  have  ?  " 

Witness  (examining  the  letter).  "  Yes,  sir,  that  is  a 
variety  of  the  same  penmanship." 

District  Attor7iey.  "  Would  you  be  willing  to  give  it 
as  your  opinion  that  it  was  written  by  the  same  person  ,?  " 

Wit7iess.    "  I  certainly  would,  sir." 

Distinct  Attorney  (taking  a  third  letter  from  his  files, 
again  folding  over  the  signature,  and  handing  to  the  wit- 
ness).   "  Be  good  enough  to  take  just  one  more  sample 

99 


THE    ART   OF    CROSS-EXAMINATION 

—  I  don't  want  to  weary  you  —  and  say  if  this  last  one 
is  also  in  the  lady's  handwriting." 

Witjiess  (appearing  to  examine  it  closely,  leaving  the 
witness-chair  and  going  to  the  window  to  complete  his 
inspection).  "  Yes,  sir,  you  understand  I  am  not  swearing 
to  a  fact,  only  an  opinion." 

District  Attorney  (good-naturedly).  "Of  course  I  under- 
stand ;  but  is  it  your  honest  opinion  as  an  expert,  that 
these  three  letters  are  all  in  the  same  handwriting } " 

Witness.   "  I  say  yes,  it  is  my  honest  opinion." 

District  Attorney.  "  Now  sir,  won't  you  please  turn 
down  the  edge  where  I  folded  over  the  signature  to  tl;ie 
first  letter  I  handed  you,  and  read  aloud  to  the  jury  the 
signature  ? " 

Witness  (unfolding  the  letter  and  reading  trium- 
phantly).  "  Lila  Noemer 

District  Attorney.  "  Please  unfold  the  second  letter 
and  read  the  signature." 

Witness  (reading).    "  William  Henriquesr 

District  Attorney.    "  Now  the  third,  please." 

Witness  (hesitating  and  reading  with  much  embarrass- 
ment).   "  Frank  Ellison  /  "  ^ 

The  alleged  compromising  letters  were  never  read  to 
the  jury. 

^  As  a  matter  of  fact,  father  and  daughter  wrote  very  much  alike,  and  with 
surprising  similarity  to  Mr.  Ellison.  It  was  this  circumstance  that  led  to  the 
use  of  the  three  letters  in  the  cross-examination. 


lOO 


CHAPTER   VI 

THE   SEQUENCE   OF   CROSS-EXAMINATION 


CHAPTER   VI 

THE    SEQUENCE    OF    CROSS-EXAMINATION 

Much  depends  upon  the  sequence  in  which  one  con- 
ducts the  cross-examination  of  a  dishonest  witness.  You 
should  never  hazard  the  important  question  until  you 
have  laid  the  foundation  for  it  in  such  a  way  that,  when 
confronted  with  the  fact,  the  witness  can  neither  deny 
nor  explain  it.  One  often  sees  the  most  damaging  docu- 
mentary evidence,  in  the  form  of  letters  or  affidavits,  fall 
absolutely  flat  as  exponents  of  falsehood,  merely  because 
of  the  unskilful  way  in  which  they  are  handled.  If  you 
have  in  your  possession  a  letter  written  by  the  witness, 
in  which  he  takes  an  opposite  position  on  some  part  of 
the  case  to  the  one  he  has  just  sworn  to,  avoid  the  com- 
mon error  of  showing  the  witness  the  letter  for  identifica- 
tion, and  then  reading  it  to  him  with  the  inquiry,  "  What 
have  you  to  say  to  that  ? "  During  the  reading  of  his 
letter  the  witness  will  be  collecting  his  thoughts  and  get- 
ting ready  his  explanations  in  anticipation  of  the  ques- 
tion that  is  to  follow,  and  the  effect  of  the  damaging  letter 
will  be  lost. 

The  correct  method  of  using  such  a  letter  is  to  lead 
the  witness  quietly  into  repeating  the  statements  he  has 

lO.^ 


THE   ART    OF   CROSS-EXAMINATION 

made  in  his  direct  testimony,  and  which  his  letter  contra- 
dicts. "  I  have  you  down  as  saying  so  and  so ;  will  you 
please  repeat  it  ?  I  am  apt  to  read  my  notes  to  the  jury, 
and  I  want  to  be  accurate."  The  witness  will  repeat  his 
statement.  Then  write  it  down  and  read  it  off  to  him. 
"  Is  that  correct  ?  Is  there  any  doubt  about  it  ?  For  if 
you  have  any  explanation  or  qualification  to  make,  I  think 
you  owe  it  to  us,  in  justice,  to  make  it  before  I  leave  the 
subject."  The  witness  has  none.  He  has  stated  the 
fact ;  there  is  nothing  to  qualify ;  the  jury  rather  like 
his  straightforwardness.  Then  let  your  whole  manner 
toward  him  suddenly  change,  and  spring  the  letter  upon 
him.  "  Do  you  recognize  your  own  handwriting,  sir.? 
Let  me  read  you  from  your  own  letter,  in  which  you  say," 
—  and  afterward — "  Now,  what  have  you  to  say  to  that  ?  " 
You  will  make  your  point  in  such  fashion  that  the  jury 
will  not  readily  forget  it.  It  is  usually  expedient,  when 
you  have  once  made  your  point,  to  drop  it  and  go  to 
something  else,  lest  the  witness  wriggle  out  of  it.  But 
when  you  have  a  witness  under  oath,  who  is  orally  con- 
tradicting a  statement  he  has  previously  made,  when  not 
under  oath,  but  in  his  own  handwriting,  you  then  have 
him  fast  on  the  hook,  and  there  is  no  danger  of  his  get- 
ting away;  now  is  the  time  to  press  your  advantage. 
Put  his  self-contradictions  to  him  in  as  many  forms  as 
you  can  invent :  — 

"  Which  statement  is  true  ?  "     "  Had  you  forgotten  this 
letter  when  you  gave  your  testimony  to-day  ? "     "  Did 

104 


I  HK   SEQUENCE    OF    CROSS-EXAMINATION 

you  tell  your  counsel  about  it?"  "Were  you  intending 
to  deceive  him?"  "What  was  your  object  in  trying  to 
mislead  the  jury?  "  ' 

"Some  men,"  said  a  London  barrister  who  often  saw 
Sir  Charles  Russell  in  action,  "get  in  a  bit  of  the  nail, 
and  there  they  leave  it  hanging  loosely  about  until  the 
judge  or  some  one  else  pulls  it  out.  But  when  Russell 
got  in  a  bit  of  the  nail,  he  never  stopped  until  he  drove 
it  home.     No  man  ever  pulled  that  nail  out  again." 

Sometimes  it  is  advisable  to  deal  the  witness  a  sting- 
ing blow  with  your  first  few  questions;  this,  of  course, 
assumes  that  you  have  the  material  with  which  to  do  it. 
The  advantage  of  putting  your  best  point  forward  at  the 
very  start  is  twofold.  First,  the  jury  have  been  listening 
to  his  direct  testimony  and  have  been  forming  their  own 
impressions  of  him,  and  when  you  rise  to  cross-examine, 
they  are  keen  for  your  first  questions.  If  you  "land 
one  "  in  the  first  bout,  it  makes  far  more  impression  on 
the  jury  than  if  it  came  later  on  when  their  attention  has 
begun  to  lag,  and  when  it  might  only  appear  as  a  chance 
shot.  The  second,  and  perhaps  more  important,  effect 
of  scoring  on  the  witness  with  the  first  group  of  ques- 
tions is  that  it  makes  him  afraid  of  you  and  less  hostile 
in  his  subsequent  answers,  not  knowing  when  you  will 
trip  him  again  and  give  him  another  fall.     This  will  often 

^  In  Chapter  XI  {infra)  is  given  in  detail  the  cross-examination  of  the 
witness  Pigott  by  Sir  Charles  Russell,  which  affords  a  most  striking  example 
of  the  most  effective  use  that  can  be  made  of  an  incriminating  letter. 

105 


THE    ART    OF    CROSS-EXAMINATION 

enable  you  to  obtain  from  him  truthful  answers  on  sub- 
jects about  which  you  are  not  prepared  to  contradict 
him. 

I  have  seen  the  most  determined  witness  completely 
lose  his  presence  of  mind  after  two  or  three  well-directed 
blows  given  at  the  very  start  of  his  cross-examination, 
and  become  as  docile  in  the  examiner's  hands  as  if  he 
were  his  own  witness.  This  is  the  time  to  lead  the  wit- 
ness back  to  his  original  story  and  give  him  the  oppor- 
tunity to  tone  it  down  or  retint  it,  as  it  were ;  possibly 
even  to  switch  him  over  until  he  finds  himself  supporting 
your  side  of  the  controversy.  This  taming  of  a  hostile 
witness,  and  forcing  him  to  tell  the  truth  against  his  will, 
is  one  of  the  triumphs  of  the  cross-examiner's  art.  In  a 
speech  to  the  jury,  Choate  once  said  of  such  a  witness, 
"  I  brand  him  a  vagabond  and  a  villain ;  they  brought 
him  to  curse,  and,  behold,  he  hath  blessed  us  alto- 
gether." 

Some  witnesses,  under  this  style  of  examination,  lose 
their  tempers  completely,  and  if  the  examiner  only  keeps 
his  own  and  puts  his  questions  rapidly  enough,  he  will 
be  sure  to  lead  the  witness  into  such  a  web  of  contradic- 
tions as  entirely  to  discredit  him  with  any  fair-minded 
jury.  A  witness,  in  anger,  often  forgets  himself  and 
speaks  the  truth.  His  passion  benumbs  his  power  to 
deceive.  Still  another  sort  of  witness  displays  his  tem- 
per on  such  occasions  by  becoming  sullen ;  he  begins  by 
giving  evasive  answers,  and  ends  by  refusing  to  answer 

1 06 


rHK    SEQUENCE    OF    CROSS-EXAMINATION 

at  all.  He  might  as  well  go  a  little  farther  and  admit 
his  perjury  at  once,  so  far  as  the  effect  on  the  jury  is 
concerned. 

When,  however,  you  have  not  the  material  at  hand 
with  which  to  frighten  the  witness  into  correcting  his 
perjured  narrative,  and  yet  you  have  concluded  that  a 
cross-examination  is  necessary,  never  waste  time  by 
putting  questions  which  will  enable  him  to  repeat  his 
original  testimony  in  the  sequence  in  which  he  first  gave 
it.  You  can  accomplish  nothing  with  him  unless  you 
abandon  the  train  of  ideas  he  followed  in  giving  his  main 
stoiy.  Select  the  weakest  points  of  his  testimony  and 
the  attendant  circumstances  he  would  be  least  likely  to 
prepare  for.  Do  not  ask  your  questions  in  logical  order, 
lest  he  invent  conveniently  as  he  goes  along ;  but  dodge 
him  about  in  his  story  and  pin  him  down  to  precise 
answers  on  all  the  accidental  circumstances  indirectly 
associated  with  his  main  narrative.  As  he  begins  to  invent 
his  answers,  put  your  questions  more  rapidly,  asking 
many  unimportant  ones  to  one  important  one,  and  all 
in  the  same  voice.  If  he  is  not  tellino:  the  truth,  and 
answering  from  memory  and  associated  ideas  rather  than 
from  imagination,  he  will  never  be  able  to  invent  his 
answers  as  quickly  as  you  can  frame  your  questions,  and 
at  the  same  time  correctl}'-  estimate  the  bearing  his  pres- 
ent answer  may  have  upon  those  that  have  preceded  it. 
If  you  have  the  requisite  skill  to  pursue  this  method  of 
questioning,  you  will  be  sure  to  land  him  in  a  maze  of 

107 


THE    ART    OF    CROSS-EXAMINATION 

self-contradictions  from  which  he  will  never  be  able  to 
extricate  himself. 

Some  witnesses,  though  unwilling  to  perjure  them- 
selves, are  yet  determined  not  to  tell  the  whole  truth  if 
they  can  help  it,  owing  to  some  personal  interest  in,  or 
relationship  to,  the  party  on  whose  behalf  they  are  called 
to  testify.  If  you  are  instructed  that  such  a  witness  (gen- 
erally a  woman)  is  in  possession  of  the  fact  you  want  and 
can  help  you  if  she  chooses,  it  is  your  duty  to  draw  it  out 
of  her.  This  requires  much  patience  and  ingenuity. 
If  you  put  the  direct  question  to  her  at  once,  you  will 
probably  receive  a  "  don't  remember  "  answer,  or  she  may 
even  indulge  her  conscience  in  a  mental  reservation  and 
pretend  a  willingness  but  inability  to  answer.  You  must 
approach  the  subject  by  slow  stages.  Begin  with  matters 
remotely  connected  with  the  important  fact  you  are  aim- 
ing at.  She  will  relate  these,  not  perhaps  realizing  on 
the  spur  of  the  moment  exactly  where  they  will  lead  her. 
Having  admitted  that  much,  you  can  lead  her  nearer 
and  nearer  by  successive  approaches  to  the  gist  of  the 
matter,  until  you  have  her  in  such  a  dilemma  that  she 
must  either  tell  you  what  she  had  intended  to  conceal 
or  else  openly  commit  perjury.  When  she  leaves  the 
witness-chair,  you  can  almost  hear  her  whisper  to  her 
friends,  "  I  never  intended  to  tell  it,  but  that  man  put  me 
in  such  a  position  I  simply  had  to  tell  or  admit  that  I 
was  lying." 

In  all  your  cross-examinations  never  lose  control  of 

1 08 


IHK    SEQUENCE    OK    CROSS-EXAMINATION 

the  witness;  confine  his  answers  to  the  exact  questions 
you  ask.  He  will  try  to  dodge  direct  answers,  or  if 
forced  to  answer  directly,  will  attempt  to  add  a  qualifica- 
tion or  an  explanation  which  will  rob  his  answer  of  the 
benefit  it  might  otherwise  be  to  you.  And  lastly,  most 
important  of  all,  let  me  repeat  the  injunction  to  be  ever 
on  the  alert  for  2,  good  place  to  stop.  Nothing  can  be 
more  important  than  to  close  your  examination  with  a 
triumph.  So  many  lawyers  succeed  in  catching  a  wit- 
ness in  a  serious  contradiction ;  but,  not  satisfied  with 
this,  go  on  asking  questions,  and  taper  off  their  exami- 
nation until  the  effect  upon  the  jury  of  their  former 
advantage  is  lost  altogether.  "  Stop  with  a  victory  "  is 
one  of  the  maxims  of  cross-examination.  If  you  have 
done  nothing  more  than  to  expose  an  attempt  to  deceive 
on  the  part  of  the  witness,  you  have  gone  a  long  way 
toward  discrediting  him  with  your  jury.  Juiymen  are 
apt  to  regard  a  witness  as  a  whole  —  either  they  believe 
him  or  they  don't.  If  they  distrust  him,  they  are  likely 
to  disregard  his  testimony  altogether,  though  much  of  it 
may  have  been  true.  The  fact  that  remains  uppermost 
in  their  minds  is  that  he  attempted  to  deceive  them,  or 
that  he  left  the  witness-stand  with  a  lie  upon  his  lips,  or 
after  he  had  displayed  his  ignorance  to  such  an  extent 
that  the  entire  audience  laughed  'at  him.  Thereafter 
his  evidence  is  dismissed  from  the  case  so  far  as  they 
are  concerned. 

Erskine  once  wasted  a  whole  day  in  trying  to  expose 

109 


THE   ART   OF    CROSS-EXAMINATION 

to  a  jury  the  lack  of  mental  balance  of  a  witness,  until 
a  physician  who  was  assisting  him  suggested  that  Erskine 
ask  the  witness  whether  he  did  not  believe  himself  to  be 
Jesus  Christ.  This  question  was  put  by  Erskine  very 
cautiously  and  with  studied  humility,  accompanied  by  a 
request  for  forgiveness  for  the  indecency  of  the  question. 
The  witness,  who  was  at  once  taken  unawares,  amid 
breathless  silence  and  with  great  solemnity  exclaimed, 
"  I  am  the  Christ "  —  which  soon  ended  the  case.^ 

^  "  Curiosities  of  Law  and  Lawyers." 


no 


CHAPTER   VII 

SILENT   CROSS-EXAMINATION 


CHAPTER   VII 

SILENT    CROSS-EXAMINATION 

Nothing  could  be  more  absurd  or  a  greater  waste  of 
time  than  to  cross-examine  a  witness  who  has  testified  to 
no  material  fact  against  you.  And  yet,  strange  as  it  may 
seem,  the  courts  are  full  of  young  lawyers  —  and  alas !  not 
only  young  ones  —  who  seem  to  feel  it  their  duty  to  cross- 
examine  every  witness  who  is  sworn.  They  seem  afraid 
that  their  clients  or  the  jury  will  suspect  them  of  ignorance 
or  inability  to  conduct  a  trial.  It  not  infrequently  hap- 
pens that  such  unnecessary  examinations  result  in  the 
development  of  new  theories  of  the  case  for  the  other 
side ;  and  a  witness  who  might  have  been  disposed  of  as 
harmless  by  mere  silence,  develops  into  a  formidable 
obstacle  in  the  case. 

The  infinite  variety  of  types  of  witnesses  one  meets  with 
in  court  makes  it  impossible  to  lay  down  any  set  rules 
applicable  to  all  cases.  One  seldom  comes  in  contact 
with  a  witness  who  is  in  all  respects  like  any  one  he  has 
ever  examined  before ;  it  is  this  that  constitutes  the  fasci- 
nation of  the  art.  The  particular  method  you  use  in  any 
given  case  depends  upon  the  degree  of  importance  you 

H  113 


THE    ART    OF    CROSS-EXAMINATION 

attach  to  the  testimony  given  by  the  witness,  even  if  it 
is  false.  It  may  be  that  you  have  on  your  own  side  so 
many  witnesses  who  will  contradict  the  testimony,  that  it 
is  not  worth  while  to  hazard  the  risks  you  will  necessarily 
run  by  undertaking  an  elaborate  cross-examination.  In 
such  cases  by  far  the  better  course  is  to  keep  your  seat 
and  ask  no  questions  at  all.  Much  depends  also,  as  will 
be  readily  appreciated,  upon  the  age  and  sex  of  the  wit- 
ness. In  fact,  it  may  be  said  that  the  truly  great  trial 
lawyer  is  he  who,  while  knowing  perfectly  well  the  es- 
tablished rules  of  his  art,  appreciates  when  they  should 
be  broken.  If  the  witness  happens  to  be  a  woman,  and 
at  the  close  of  her  testimony-in-chief  it  seems  that  she 
will  be  more  than  a  match  for  the  cross-examiner,  it  often 
works  like  a  charm  with  the  jury  to  practise  upon  her 
what  may  be  styled  the  silent  cross-examination.  Rise 
suddenly,  as  if  you  intended  to  cross-examine.  The  wit- 
ness will  turn  a  determined  face  toward  you,  preparatory 
to  demolishing  you  with  her  first  answer.  This  is  the 
signal  for  you  to  hesitate  a  moment.  Look  her  over 
good-naturedly  and  as  if  you  were  in  doubt  whether  it 
would  be  worth  while  to  question  her  —  and  sit  down. 
It  can  be  done  by  a  good  actor  in  such  a  manner  as  to 
be  equivalent  to  saying  to  the  jury,  "What's  the  use."^ 
she  is  only  a  woman." 

John  Philpot  Curran,  known  as  the  most  popular  ad- 
vocate of  his  time,  and  second  only  to  Erskine  as  a  jury 
lawyer,   once  indulged   himself  in  this   silent  mode  of 

114 


SILENT   CROSS-EXAMINATION 

cross-examination,  but  made  the  mistake  of  speaking  his 
thoughts  aloud  before  he  sat  down.  "  There  is  no  use 
asking  you  questions,  for  I  see  the  villain  in  yrnir 
face."  "Do  you,  sir?"  replied  the  witness  with  a 
smile.  "  I  never  knew  before  that  my  face  was  a 
looking-glass." 

Since  the  sole  object  of  cross-examination  is  to  break 
the  force  of  the  adverse  testimony,  it  must  be  remem- 
bered that  a  futile  attempt  only  strengthens  the  witness 
with  the  jury.  It  cannot  be  too  often  repeated,  there- 
fore, that  saying  nothing  will  frequently  accomplish  more 
than  hours  of  questioning.  It  is  experience  alone  that 
can  teach  us  which  method  to  adopt. 

An  amusing  instance  of  this  occurred  in  the  trial  of 
Alphonse  Stephani,  indicted  for  the  murder  of  Clinton  G. 
Reynolds,  a  prominent  lawyer  in  New  York,  who  had  had 
the  management  and  settlement  of  his  father's  estate. 
The  defence  was  insanity;  but  the  prisoner,  though  evi- 
dently suffering  from  the  early  stages  of  some  serious 
brain  disorder,  was  still  not  insane  in  the  legal  accepta- 
tion of  the  term.  He  was  convicted  of  murder  in  the 
second  degree  and  sentenced  to  a  life  imprisonment. 

Stephani  was  defended  by  the  late  William  F.  Howe, 
Esq.,  who  was  certainly  one  of  the  most  successful  lawyers 
of  his  time  in  criminal  cases.  Howe  was  not  a  Qrreat 
lawyer,  but  the  kind  of  witnesses  ordinarily  met  with 
in  such  cases  he  usually  handled  with  a  skill  that  was 
little  short  of  positive  genius. 

"5 


THE    ART    OF    CROSS-EXAMINATION 

Dr.  Allan  McLaiie  Hamilton,  the  eminent  alienist,  had 
made  a  special  study  of  Stephani's  case,  had  visited  him 
for  weeks  at  the  Tombs  Prison,  and  had  prepared  himself 
for  a  most  exhaustive  exposition  of  his  mental  condition. 
Dr.  Hamilton  had  been  retained  by  Mr.  Howe,  and  was 
to  be  put  forward  by  the  defence  as  their  chief  witness. 
Upon  calling  him  to  the  witness-chair,  however,  he  did 
not  question  his  witness  so  as  to  lay  before  the  jury  the 
extent  of  his  experience  in  mental  disorders  and  his 
familiarity  with  all  forms  of  insanity,  nor  develop  before 
them  the  doctor's  peculiar  opportunities  for  judging  cor- 
rectly of  the  prisoner's  present  condition.  The  wily 
advocate  evidently  looked  upon  District  Attorney  De- 
Lancey  Nicoll  and  his  associates,  who  were  opposed  to 
him,  as  a  lot  of  inexperienced  youngsters,  who  would 
cross-examine  at  great  length  and  allow  the  witness  to 
make  every  answer  tell  with  double  effect  when  elicited 
by  the  state's  attorney.  It  has  always  been  supposed 
that  it  was  a  preconceived  plan  of  action  between  the 
learned  doctor  and  the  advocate.  In  accordance  there- 
with, and  upon  the  examination-in-chief,  Mr.  Howe  con- 
tented himself  with  this  single  inquiry :  — 

"  Dr.  Hamilton,  you  have  examined  the  prisoner  at 
the  Bar,  have  you  not  ? " 

"  I  have,  sir,"  replied  Dr.  Hamilton. 

"Is  he,  in  your  opinion,  sane  or  insane .f* "  continued 
Mr.   Howe. 

"  Insane,"  said  Dr.  Hamilton. 

ii6 


SILENT   CROSS  EXAMINATION 

*'  You  may  cross-examine,"  thundered  Howe,  with  one 
of  his  characteristic  gestures.  There  was  a  hurried  con- 
sultation between  Mr.  Nicoll  and  his  associates. 

"  We  have  no  questions,"  remarked  Mr.  Nicoll,  quietly. 

"  What ! "  exclaimed  Howe,  "  not  ask  the  famous  Dr. 
Hamilton  a  question  ?  Well,  /  will,"  and  turning  to  the 
witness  began  to  ask  him  how  close  a  study  he  had 
made  of  the  prisoner's  symptoms,  etc. ;  when,  upon  our 
objection.  Chief  Justice  Van  Brunt  directed  the  witness 
to  leave  the  witness-box,  as  his  testimony  was  concluded, 
and  ruled  that  inasmuch  as  the  direct  examination  had 
been  finished,  and  there  had  been  no  cross-examination, 
there  was  no  course  open  to  Mr.  Howe  but  to  call  his 
next  witness ! 

Mr.  Sergeant  Ballantine  in  his  autobiography,  "  Some 
Experiences  of  a  Barrister's  Life,"  gives  an  account  of 
the  trial  for  murder  of  a  young  woman  of  somewhat  pre- 
possessing appearance,  who  was  charged  with  poisoning 
her  husband.  "  They  were  people  in  a  humble  class  of 
life,  and  it  was  suggested  that  she  had  committed  the 
act  to  obtain  possession  of  money  from  a  burial  fund, 
and  also  that  she  was  on  terms  of  improper  intimacy 
with  a  young  man  in  the  neighborhood.  A  minute 
quantity  of  arsenic  was  discovered  in  the  body  of  the 
deceased,  which  in  the  defence  I  accounted  for  by  the 
suggestion  that  poison  had  been  used  carelessly  for 
the  destruction  of  rats.  Mr.  Baron  Parke  charged  the 
jury  not  unfavorably  to  the  prisoner,  dwelling  pointedly 

117 


THE   ART    OF    CROSS-EXAMINATION 

upon  the  small  quantity  of  arsenic  found  in  the  body, 
and  the  jury  without  much  hesitation  acquitted  her. 
Dr.  Taylor,  the  professor  of  chemistry  and  an  experi- 
enced witness,  had  proved  the  presence  of  arsenic,  and, 
as  I  imagine,  to  the  great  disappointment  of  my  solici- 
tor, who  desired  a  severe  cross-examination,  I  did  not 
ask  him  a  single  question.  He  was  sitting  on  the  bench 
and  near  the  judge,  who,  after  he  had  summed  up  and 
before  the  verdict  was  pronounced,  remarked  to  him  that 
he  was  surprised  at  the  small  amount  of  arsenic  found ; 
upon  which  Taylor  said  that  if  he  had  been  asked  the 
question,  he  should  have  proved  that  it  indicated,  under 
the  circumstances  detailed  in  evidence,  that  a  very  large 
quantity  had  been  taken.  The  professor  had  learned 
never  to  volunteer  evidence,  and  the  counsel  for  the 
prosecution  had  omitted  to  put  the  necessary  question. 
Mr.  Baron  Parke,  having  learned  the  circumstance  by 
accidental  means,  did  not  feel  warranted  in  using  the  in- 
formation, and  I  had  my  first  lesson  in  the  art  of  '  silent 
cross-examination.' " 


ii8 


CHAPTER   VIII 

CROSS-EXAMINATION   TO   CREDIT,   AND   ITS   ABUSES 


CHAPTER   VIII 

CROSS-EXAMINATION    TO    CREDIT,    AND    ITS    ABUSES 

The  preceding  chapters  have  been  devoted  to  the 
legitimate  uses  of  cross-examination  —  the  development 
of  truth  and  exposure  of  fraud. 

Cross-examination  as  to  credit  has  also  its  legitimate 
use  to  accomplish  the  same  end ;  but  this  powerful 
weapon  for  good  has  almost  equal  possibilities  for  evil. 
It  is  proposed  in  the  present  chapter  to  demonstrate 
that  cross-examination  as  to  credit  should  be  exercised 
with  great  care  and  caution,  and  also  to  discuss  some 
of  the  abuses  of  cross-examination  by  attorneys,  under 
the  guise  and  plea  of  cross-examination  as  to  credit. 

Questions  which  throw  no  light  upon  the  real  issues 
in  the  case,  nor  upon  the  integrity  or  credit  of  the 
witness  under  examination,  but  which  expose  misdeeds, 
perhaps  long  since  repented  of  and  lived  down,  are 
often  put  for  the  sole  purpose  of  causing  humiliation  and 
disgrace.  Such  inquiries  into  private  life,  private  affairs, 
or  domestic  infelicities,  perhaps  involving  innocent  per- 
sons who  have  nothing  to  do  with  the  particular  litiga- 
tion and  who  have  no  opportunity  for  explanation  nor 
means  of  redress,  form  no  legitimate  part  of  the  cross- 

121 


THE    ART   OF   CROSS-EXAMINATION 

examiner's  art.  The  lawyer  who  allows  himself  to 
become  the  mouthpiece  of  the  spite  or  revenge  of  his 
client  may  inflict  untold  suffering  and  unwarranted  tor- 
ture. Such  questions  may  be  within  the  legal  rights  of 
counsel  in  certain  instances,  but  the  lawyer  who  allows 
himself  to  be  led  astray  by  his  zeal  or  by  the  solicitations 
of  his  client,  at  his  elbow,  ready  to  make  any  sacrifice  to 
humiliate  his  adversary,  thereby  debauches  his  profession 
and  surrenders  his  self-respect,  for  which  an  occasional 
verdict,  won  from  an  impressionable  jury  by  such 
methods,  is  a  poor  recompense. 

To  warrant  an  investigation  into  matters  irrelevant  to 
the  main  issues  in  the  case,  and  calculated  to  disgrace 
the  witness  or  prejudice  him  in  the  eyes  of  the  jury,  they 
must  at  least  be  such  as  tend  to  impeach  his  general 
moral  character  and  his  credibility  as  a  witness.  There 
can  be  no  sanction  for  questions  that  tend  simply  to 
degrade  the  witness  personally,  and  which  can  have  no 
possible  bearing  upon  his  veracity. 

In  all  that  has  preceded  we  have  gone  upon  the  pre- 
sumption that  the  cross-examiner's  art  would  be  used  to 
further  his  client's  cause  by  all  fair  and  legitimate  means, 
not  by  misrepresentation,  insinuation,  or  by  knowingly 
putting  a  witness  in  a  false  light  before  a  jury.  These 
methods  doubtless  succeed  at  times,  but  he  who  practises 
them  acquires  the  reputation,  with  astounding  rapidity, 
of  being  "  smart,"  and  finds  himself  discredited  not  only 
with  the  court,  but  in  some  almost  unaccountable  way, 

122 


CROSS-EXAMINATION   TO    CREDIT 

with  the  very  juries  before  whom  he  appears.  Let  him 
once  get  the  reputation  of  being  "  unfair  "  among  the 
habitues  of  tlie  court-house,  and  his  usefulness  to  clients 
as  a  trial  lawyer  is  gone  forever.  Honesty  is  the  best 
policy  quite  as  much  with  the  advocate  as  in  any  of  the 
walks  of  life. 

Counsel  may  have  in  his  possession  material  for  injuring 
the  witness,  but  the  propriety  of  using  it  often  becomes 
a  serious  question  even  in  cases  where  its  use  is  otherwise 
perfectly  legitimate.  An  outrage  to  the  feelings  of  a 
witness  may  be  quickly  resented  by  a  jury,  and  sympathy 
take  the  place  of  disgust.  Then,  too,  one  has  to  reckon 
with  the  judge,  and  the  indignation  of  a  strong  judge  is 
not  wisely  provoked.  Nothing  could  be  more  unprofes- 
sional than  for  counsel  to  ask  questions  which  disgrace 
not  only  the  witness,  but  a  host  of  innocent  persons,  for 
the  mere  reason  that  the  client  wishes  them  to  be 
asked. 

There  could  be  no  better  example  of  the  folly  of  yield- 
ing to  a  client's  hatred  or  desire  for  revenge  than  the 
outcome  of  the  famous  case  in  which  Mrs.  Edwin  For- 
rest was  granted  a  divorce  against  her  husband,  the  dis- 
tinguished tragedian,  Mrs.  Forrest,  a  lady  of  culture 
and  refinement,  demanded  her  divorce  upon  the  ground 
of  adultery,  and  her  husband  had  made  counter-charges 
against  her.  At  the  trial  (185 1)  Charles  O'Connor, 
counsel  for  Mrs.  Forrest,  called  as  his  first  witness  the 
husband  himself,  and  asked  him  concerning  his  infideli- 

123 


THE    ART    OF   CROSS-EXAMINATION 

ties  in  connection  with  a  certain  actress.  John  Van 
Buren,  who  appeared  for  Edwin  Forrest,  objected  to  the 
question  on  the  ground  that  it  required  his  client  to 
testify  to  matters  that  might  incriminate  him.  The 
question  was  not  allowed,  and  the  husband  left  the  wit- 
ness-stand. After  calling  a  few  unimportant  witnesses, 
O'Connor  rested  the  case  for  plaintiff  without  having 
elicited  any  tangible  proof  against  the  husband.  Had 
a  motion  to  take  the  case  from  the  jury  been  made  at 
this  time,  it  would  of  necessity  have  been  granted,  and 
the  wife's  suit  would  have  failed.  It  is  said  that  when 
Mr.  Van  Buren  was  about  to  make  such  a  motion  and 
end  the  case,  Mr.  Forrest  directed  him  to  proceed  with 
the  testimony  for  the  defence,  and  develop  the  nauseating 
evidence  he  had  accumulated  against  his  wife.  Van 
Buren  yielded  to  his  client's  wishes,  and  for  days  and 
weeks  continued  to  call  witness  after  witness  to  the 
disgusting  details  of  Mrs.  Forrest's  alleged  debauchery. 
The  case  attracted  great  public  attention  and  was  widely 
reported  by  the  newspapers.  The  public,  as  so  often 
happens,  took  the  opposite  view  of  the  evidence  from  the 
one  the  husband  had  anticipated.  Its  very  revolting 
character  aroused  universal  sympathy  on  the  wife's  be- 
half. Mr.  O'Connor  soon  found  himself  flooded  with 
offers  of  evidence,  anonymous  and  otherwise,  against  the 
husband,  and  when  Van  Buren  finally  closed  his  attack 
upon  the  wife,  O'Connor  was  enabled,  in  rebuttal,  to 
bring  such  an  avalanche  of  convincing  testimony  against 

124 


CROSS-KXAMINA  riON     IT)    CRKIM  f 

the  defendant  tliat  the  jury  promptly  exonerated  Mrs. 
Forrest  and  granted  her  the  divorce.  At  the  end  of  the 
first  day's  trial  the  case  could  have  been  decided  in  favor 
of  the  husband,  had  a  simple  motion  to  that  effect  been 
made;  but,  yielding  to  his  client's  hatred  of  his  wife,  and 
after  a  hard-fought  trial  of  thirty-three  days,  Mr.  Van 
Buren  found  both  himself  and  his  client  ignominiously 
defeated.  This  error  of  Mr,  Van  Buren's  was  widely 
commented  on  by  the  profession  at  the  time.  He  had 
but  lately  resigned  his  office  at  Albany  as  attorney  gen- 
eral, and  up  to  the  time  of  this  trial  had  acquired  no  little 
prestige  in  his  practice  in  the  city  of  New  York,  which, 
however,  he  never  seemed  to  regain  after  his  fatal  blunder 
in  the  Forrest  divorce  case.' 

The  abuse  of  cross-examination  has  been  widely  dis- 
cussed in  England  in  recent  years,  partly  in  consequence 
of  the  cross-examination  of  a  Mrs.  Bravo,  whose  hus- 
band had  died  by  poison.  He  had  lived  unhappily  with 
her  on  account  of  the  attentions  of  a  certain  physician. 
During  the  inquiry  into  the  circumstances  of  her  hus- 
band's death,  the  story  of  the  wife's  intrigue  was  made 
public  through  her  cross-examination.  Sir  Charles  Rus- 
sell, who  was  then  regarded  as  standing  at  the  head  of 
the  Bar,  both  in  the  extent  of  his  business  and  in  his 
success  in  court,  and  Sir  Edward  Clark,  one  of  her 
Majesty's  law  of^cers,  wdth  a  high  reputation  for  ability 
in  jury  trials,  were  severely  criticised  as  "forensic  bul- 

^ "  Extraordinary  Cases,"  H.  L.  Clinton. 
125 


THE   ART    OF    CROSS-EXAiMINATION 

lies,"  and  complained  of  as  "lending  the  authority  of 
their  example  to  the  abuse  of  cross-examination  to  credit 
which  was  quickly  followed  by  barristers  of  inferior  posi- 
tions, among  whom  the  practice  was  spreading  of  assail- 
ing witnesses  with  what  was  not  unfairly  called  a  system 
of  innuendoes,  suggestions,  and  bullying  from  which 
sensitive  persons  recoil."  And  Mr.  Charles  Gill,  one 
of  the  many  imitators  of  Russell's  domineering  style, 
was  criticised  as  "  bettering  the  instructions  of  his  elders." 

The  complaint  against  Russell  was  that  by  his  prac- 
tices as  displayed  in  the  Osborne  case  —  robbery  of 
jewels  —  not  only  may  a  man's,  or  a  woman's,  whole 
past  be  laid  bare  to  malignant  comment  and  public 
curiosity,  but  there  is  no  means  afforded  by  the  courts 
of  showing  how  the  facts  really  stood  or  of  producing 
evidence  to  repel  the  damaging  charges. 

Lord  Bramwell,  in  an  article  published  originally  in 
Nineteenth  Century  for  February,  1892,  and  republished 
in  legal  periodicals  all  over  the  world,  strongly  defends 
the  methods  of  Sir  Charles  Russell  and  his  imitators. 
Lord  Bramwell  claimed  to  speak  after  an  experience  of 
forty-seven  years'  practice  at  the  Bar  and  on  the  bench, 
and  long  acquaintance  with  the  legal  profession. 

"  A  judge's  sentence  for  a  crime,  however  much  re- 
pented of,  is  not  the  only  punishment ;  there  is  the  con- 
sequent loss  of  character  in  addition,  which  should 
confront  such  a  person  whenever  called  to  the  witness- 
stand."     "  Women  who  carry  on  illicit  intercourse,  and 

126 


CROSS-EXAMINATION    TO    CREDIT 

whose  husbands  die  of  poison,  must  not  complain  at 
having  the  veil  that  ordinarily  screens  a  woman's  life 
from  public  inquiry  rudely  torn  aside."  "  It  is  well  for 
the  sake  of  truth  that  there  should  be  a  wholesome  dread 
of  cross-examination."  "  It  should  not  be  understood  to 
be  a  trivial  matter,  but  rather  looked  upon  as  a  trying 
ordeal."  "  None  but  the  sore  feel  the  probe."  Such 
were  some  of  the  many  arguments  of  the  various  up- 
holders of  broad  license  in  examinations  to  credit. 

Lord  Chief  Justice  Cockburn  took  the  opposite  view 
of  the  question.  "  I  deeply  deplore  that  members  of  the 
Bar  so  frequently  unnecessarily  put  questions  affecting 
the  private  life  of  witnesses,  which  are  only  justifiable 
when  they  challenge  the  credibility  of  a  witness.  I 
have  watched  closely  the  administration  of  justice  in 
France,  Germany,  Holland,  Belgium,  Italy,  and  a  little 
in  Spain,  as  well  as  in  the  United  States,  in  Canada, 
and  in  Ireland,  and  in  no  place  have  I  seen  witnesses 
so  badgered,  browbeaten,  and  in  every  way  so  brutally 
maltreated  as  in  England.  The  way  in  which  we  treat 
our  witnesses  is  a  national  disgrace  and  a  serious  obstacle, 
instead  of  aiding  the  ends  of  justice.  In  England  the 
most  honorable  and  conscientious  men  loathe  the  wit- 
ness-box. Men  and  women  of  all  ranks  shrink  with 
terror  from  subjecting  themselves  to  the  wanton 
insult  and  bullying  misnamed  cross-examination  in  our 
English  courts.  Watch  the  tremor  that  passes  the 
frames  of  many  persons  as  they  enter  the  witness-box. 

127 


THE   ART   OF   CROSS-EXAMINATION 

I  remember  to  have  seen  so  distinguished  a  man  as  the 
late  Sir  Benjamin  Brodie  shiver  as  he  entered  the  wit- 
ness-box. I  daresay  his  apprehension  amounted  to 
exquisite  torture.  Witnesses  are  just  as  necessary  for 
the  administration  of  justice  as  judges  or  jurymen,  and 
are  entitled  to  be  treated  with  the  same  consideration, 
and  their  affairs  and  private  lives  ought  to  be  held  as 
sacred  from  the  gaze  of  the  public  as  those  of  the 
judges  or  the  jurymen.  I  venture  to  think  that  it  is 
the  duty  of  a  judge  to  allow  no  questions  to  be  put  to 
a  witness,  unless  such  as  are  clearly  pertinent  to  the 
issue  before  the  court,  except  where  the  credibility  of 
the  witness  is  deliberately  challenged  by  counsel  and 
that  the  credibility  of  a  witness  should  not  be  wantonly 
challenged  on  slight  grounds."  ^ 

The  propriety  or  impropriety  of  questions  to  credit  is 
of  course  largely  addressed  to  the  discretion  of  the  court. 
Such  questions  are  generally  held  to  be  fair  when,  if  the 
imputation  they  convey  be  true,  the  opinion  of  the  court 
would  be  seriously  affected  as  to  the  credibility  of  the 
witness  on  the  matter  to  which  he  testifies ;  they  are 
unfair  when  the  imputation  refers  to  matters  so  remote 
in  time,  or  of  such  character  that  its  truth  would  not 
affect  the  opinion  of  the  court;  or  if  there  be  a  great 
disproportion  between  the  importance  of  the  imputa- 
tion and  the  importance  of  the  witness's  evidence.^ 

A  judge,  however,  to  whose  discretion  such  questions 

^  "Irish  Law  Times,"  1874.         ^  sir  James  Stephen's  Evidence  Act. 

128 


CROSS-KXAMINATION     TO    CRKDl'V 

are  addressed  in  the  first  instance,  can  have  but  an  imper- 
fect knowledge  of  either  side  of  the  case  before  him.  He 
cannot  always  be  sure,  without  hearing  all  the  facts, 
whether  the  questions  asked  would  or  would  not  tend 
to  develop  the  truth  rather  than  simply  degrade  the 
witness.  Then,  again,  the  mischief  is  often  done  by  the 
mere  asking  of  the  question,  even  if  the  judge  directs 
the  witness  not  to  answer.  The  insinuation  has  been 
made  publicly  —  the  dirt  has  been  thrown.  The  dis- 
cretion must  therefore  after  all  be  largely  left  to  the 
lawyer  himself.  He  is  bound  in  honor,  and  out  of  respect 
to  his  profession,  to  consider  whether  the  question  ought 
in  conscience  to  be  asked  —  whether  in  his  own  honest 
judgment  it  renders  the  witness  unworthy  of  belief  under 
oath  —  before  he  allows  himself  to  ask  it.  It  is  much 
safer,  for  example,  to  proceed  upon  the  principle  that  the 
relations  between  the  sexes  has  no  bearing  whatever 
upon  the  probability  of  the  witness  telling  the  truth, 
unless  in  the  extreme  case  of  an  abandoned  woman. 

In  criminal  prosecutions  the  district  attorney  is 
usually  regarded  by  the  jury  much  in  the  light  of  a 
judicial  officer  and,  as  such,  unprejudiced  and  impartial. 
Any  slur  or  suggestion  adverse  to  a  prisoner's  witness 
coming  from  this  source,  therefore,  has  an  added  power 
for  evil,  and  is  calculated  to  do  injustice  to  the  defend- 
ant. There  have  been  many  flagrant  abuses  of  this 
character  in  the  criminal  courts  of  our  own  city.  "  Is 
it  not  a  fact  that  you  were  not  there  at  all  ?  "  "  Has  all 
I  129 


THE   ART    OF   CROSS-EXAMINATION 

this  been  written  out  for  you  ?  "  "  Is  it  not  a  fact  that 
you  and  your  husband  have  concocted  this  whole 
story  ?  "  "  You  have  been  a  witness  for  your  husband 
in  every  lawsuit  he  has  had,  have  you  not  ?  "  —  were  all 
questions  that  were  recently  criticised  by  the  court,  on 
appeal,  as  "  innuendo,"  and  calculated  to  prejudice  the 
defendant  —  by  the  Michigan  Supreme  Court  in  the 
People  vs.  Cahoon  —  and  held  sufficient,  in  connection 
with  other  similar  errors,  to  set  the  conviction  aside. 

Assuming  that  the  material  with  which  you  propose 
to  assail  the  credibility  of  a  witness  fully  justifies  the 
attack,  the  question  then  arises.  How  to  use  this  material 
to  the  best  advantage?  The  sympathies  of  juries  are 
keen  toward  those  obliged  to  confess  their  crimes  on  the 
witness-stand.  The  same  matters  may  be  handled  to 
the  advantage  or  positive  disadvantage  of  the  cross- 
examiner.  If  you  hold  in  your  possession  the  evidence 
of  the  witness's  conviction,  for  example,  but  allow  him 
to  understand  that  you  know  his  history,  he  will  surely 
get  the  better  of  you.  Conceal  it  from  him,  and  he 
will  likely  try  to  conceal  it  from  you,  or  lie  about  it 
if  necessary.  "  I  don't  suppose  you  have  ever  been  in 
trouble,  have  you  }  "  will  bring  a  quick  reply,  "  What 
trouble  ?  "  —  "  Oh,  I  can't  refer  to  any  particular  trouble. 
I  mean  generally,  have  you  ever  been  in  jail } "  The 
witness  will  believe  you  know  nothing  about  him  and 
deny  it,  or  if  he  has  been  many  times  convicted,  will 
admit  some  small  offence  and  attempt  to  conceal  every- 

130 


CROSS-EXAMINATION   TO    CREDIT 

thing  but  what  he  suspects  you  know  already  about  him. 
This  very  attempt  to  deceive,  if  exposed,  will  destroy 
him  with  the  jury  far  more  effectually  than  the  knowl- 
edge of  the  offences  he  has  committed.  On  the  other 
hand,  suppose  you  taunt  him  with  his  crime  in  the  first 
instance  ;  ten  to  one  he  will  admit  his  wrong-doing  in 
such  a  way  as  to  arouse  toward  himself  the  sympathy 
of  the  jury  and  their  resentment  toward  the  lawyer 
who  was  unchristian  enough  to  uncover  to  public  view 
offences  long  since  forgotten. 

Chief  Baron  Pollock  once  presided  at  a  case  where 
a  witness  was  asked  about  a  conviction  years  gone  by, 
though  his  (the  witness's)  honesty  was  not  doubted.  The 
baron  burst  into  tears  at  the  answer  of  the  witness. 

In  the  Bellevue  Hospital  case  (the  details  of  which  are 
fully  described  in  a  subsequent  chapter),  and  during  the 
cross-examination  of  the  witness  Chambers,  who  was  con- 
fined in  the  Pavilion  for  the  Insane  at  the  time,  the  writer 
was  imprudent  enough  to  ask  the  witness  to  explain  to 
the  jury  how  he  came  to  be  confined  on  Ward's  Island, 
only  to  receive  the  pathetic  reply :  "  I  was  sent  there 
because  I  was  insane.  You  see  my  wife  was  very  ill  with 
locomotor  ataxia.  She  had  been  ill  a  year ;  I  was  her  only 
nurse.  I  tended  her  day  and  night.  We  loved  each  other 
dearly.  I  was  greatly  worried  over  her  long  illness  and 
frightful  suffering.  The  result  was,  I  worried  too  deeply  ; 
she  had  been  very  good  to  me.  I  overstrained  myself, 
my  mind  gave  way;    but  I  am  better  now,  thank  you." 

131 


CHAPTER    IX 

GOLDEN   RULES   FOR   THE   EXAMINATION   OF   WITNESSES 


CHAPTER    IX 

GOLDEN    RULES    FOR    THE    EXAMINATION    OF   WITNESSES 

David  Paul  Brown,  a  member  of  the  Philadelphia 
Bar,  has  condensed  his  experiences  into  eighteen  para- 
graphs which  he  has  entitled,  "  Golden  Rules  for  the 
Examination  of  Witnesses." 

Although  I  am  of  the  opinion  that  it  is  impossible  to 
embody  in  any  set  of  rules  the  art  of  examination  of  wit- 
nesses, yet  the  Golden  Rules  of  Brown  contain  so  many 
useful  and  valuable  suggestions  concerning  the  art,  that 
it  is  well  to  reprint  them  here  for  the  benefit  of  the  stu- 
dent. 

Golden  Rules  for  the  Examinatio^t  of  Witnesses 

First,  as  to  your  own  witnesses. 

I.  If  they  are  bold,  and  may  injure  your  cause  by  pert- 
ness  or  forwardness,  observe  a  gravity  and  ceremony  of 
manner  toward  them  which  may  be  calculated  to  repress 
their  assurance. 

II.  If  they  are  alarmed  or  diffident,  and  their  thoughts 
are  evidently  scattered,  commence  your  examination 
with  matters  of  a  familiar  character,  remotely  connected 
with  the  subject  of  their  alarm,  or  the  matter  in  issue  ;  as, 

135 


THE   ART    OF    CROSS-EXAMINATION 

for  instance,  —  Where  do  you  live  ?  Do  you  know  the 
parties  ?  How  long  have  you  known  them  ?  etc.  And 
when  you  have  restored  them  to  their  composure,  and 
the  mind  has  regained  its  equilibrium,  proceed  to  the 
more  essential  features  of  the  case,  being  careful  to  be 
mild  and  distinct  in  your  approaches,  lest  you  may  again 
trouble  the  fountain  from  which  you  are  to  drink. 

III.  If  the  evidence  of  your  own  witnesses  be  unfavor- 
able to  you  (which  should  always  be  carefully  guarded 
against),  exhibit  no  want  of  composure ;  for  there  are 
many  minds  that  form  opinions  of  the  nature  or  char- 
acter of  testimony  chiefly  from  the  effect  which  it  may 
appear  to  produce  upon  the  counsel. 

IV,  If  you  perceive  that  the  mind  of  the  witness  is 
imbued  with  prejudices  against  your  client,  hope  but 
little  from  such  a  quarter  —  unless  there  be  some  facts 
which  are  essential  to  your  client's  protection,  and  which 
that  witness  alone  can  prove,  either  do  not  call  him,  or 
get  rid  of  him  as  soon  as  possible.  If  the  opposite  coun- 
sel perceive  the  bias  to  which  I  have  referred,  he  may 
employ  it  to  your  ruin.  In  judicial  inquiries,  of  all  pos- 
sible evils,  the  worst  and  the  least  to  be  resisted  is  an 
enemy  in  the  disguise  of  a  friend.  You  cannot  impeach 
him ;  you  cannot  cross-examine  him ;  you  cannot  dis- 
arm him ;  you  cannot  indirectly,  even,  assail  him ;  and 
if  you  exercise  the  only  privilege  that  is  left  to  you,  and 
call  other  witnesses  for  the  purposes  of  explanation,  you 
must  bear  in  mind  that,  instead  of  carrying  the  war  into 

136 


GOLDEN    RUI.KS    FOR    EXAMINING    WITNESSES 

the  enemy's  country,  tlie  struggle  is  still  between  sections 
of  your  own  forces,  and  in  the  very  heart,  perhaps,  of  your 
own  camp.     Avoid  this,  Ijy  all  means. 

V.  Never  call  a  witness  whom  your  adversary  will  be 
compelled  to  call.  This  will  afford  you  the  privilege  of 
cross-examination,  —  take  from  your  opponent  the  same 
privilege  it  thus  gives  to  you,  —  and,  in  addition  thereto, 
not  only  render  everything  unfavorable  said  by  the  wit- 
ness doubly  operative  against  the  party  calling  him,  but 
also  deprive  that  party  of  the  power  of  counteracting  the 
effect  of  the  testimony. 

VI.  Never  ask  a  question  without  an  object,  nor 
without  being  able  to  connect  that  object  with  the  case, 
if  objected  to  as  irrelevant. 

VII.  Be  careful  not  to  put  your  question  in  such  a 
shape  that,  if  opposed  for  informality,  you  cannot  sustain 
it,  or,  at  all  events,  produce  strong  reason  in  its  support. 
Frequent  failures  in  the  discussions  of  points  of  evidence 
enfeeble  your  strength  in  the  estimation  of  the  jury,  and 
greatly  impair  your  hopes  in  the  final  result. 

VIII.  Never  object  to  a  question  from  your  adversary 
without  being  able  and  disposed  to  enforce  the  objection. 
Nothing  is  so  monstrous  as  to  be  constantly  making 
and  withdrawing  objections ;  it  either  indicates  a  want 
of  correct  perception  in  makijig  them,  or  a  deficiency  of 
real  or  of  moral  courage  in  not  making  them  good. 

IX.  Speak  to  your  witness  clearly  and  distinctly,  as  if 
you  were  awake  and  engaged  in  a  matter   of    interest, 

137 


THE   ART   OF   CROSS-EXAMINATION 

and  make  him  also  speak  distinctly  and  to  your  question. 
How  can  it  be  supposed  that  the  court  and  jury  will  be 
inclined  to  listen,  when  the  only  struggle  seems  to  be 
whether  the  counsel  or  the  witness  shall  first  go  to  sleep  ? 

X.  Modulate  your  voice  as  circumstances  may  direct, 
"  Inspire  the  fearful  and  repress  the  bold." 

XI.  Never  begin  before  you  are  ready,  and  always 
finish  when  you  have  done.  In  other  words,  do  not  ques- 
tion for  question's  sake,  but  for  an  answer. 

Cross-examination 

I.  Except  in  indifferent  matters,  never  take  your  eye 
from  that  of  the  witness ;  this  is  a  channel  of  communi- 
cation from  mind  to  mind,  the  loss  of  which  nothing  can 
compensate. 

"Truth,  falsehood,  hatred,  anger,  scorn,  despair, 
And  all  the  passions  —  all  the  soul  —  is  there." 

II.  Be  not  regardless,  either,  of  the  voice  of  the  wit- 
ness ;  next  to  the  eye  this  is  perhaps  the  best  interpreter 
of  his  mind.  The  very  design  to  screen  conscience 
from  crime  —  the  mental  reservation  of  the  witness  — 
is  often  manifested  in  the  tone  or  accent  or  emphasis  of 
the  voice.  For  instance,  it  becoming  important  to  know 
that  the  witness  was  at  the  corner  of  Sixth  and  Chestnut 
streets  at  a  certain  time,  the  question  is  asked,  Were 
you  at  the  corner  of  Sixth  and  Chestnut  streets  at  six 
o'clock.?      A   frank   witness   would   answer,   perhaps    I 

138 


GOLDEN    RULKS    FOR    EXAMINJNC;    WITNESSES 

was  near  there.  But  a  witness  who  had  been  there,  de- 
sirous to  conceal  the  fact,  and  to  defeat  your  object, 
speaking  to  the  letter  rather  than  the  spirit  of  the  in- 
quiiy,  answers,  No;  although  he  may  have  been  within 
a  stone's  throw  of  the  place,  or  at  the  very  place,  within 
ten  minutes  of  the  time.  The  common  answer  of  such 
a  witness  would  be,  I  was  not  at  the  cor7ier  at  six  dclock. 
Emphasis  upon  both  words  plainly  implies  a  mental 
evasion  or  equivocation,  and  gives  rise  with  a  skilful 
examiner  to  the  question.  At  what  hour  were  you  at  the 
corner,  or  at  what  place  were  you  at  six  o'clock?  And 
in  nine  instances  out  of  ten  it  will  appear,  that  the  wit- 
ness was  at  the  place  about  the  time,  or  at  the  time 
about  the  place.  There  is  no  scope  for  further  illustra- 
tions ;  but  be  watchful,  I  say,  of  the  voice,  and  the 
principle  may  be  easily  applied. 

III.  Be  mild  with  the  mild;  shrewd  with  the  crafty; 
confiding  with  the  honest;  merciful  to  the  young, 
the  frail,  or  the  fearful ;  rough  to  the  ruffian,  and  a 
thunderbolt  to  the  liar.  But  in  all  this,  never  be  un- 
mindful of  your  own  dignity.  Bring  to  bear  all  the 
powers  of  your  mind,  not  that  yoit  may  shine,  but  that 
virtue  may  triumph,  and  your  cause  may  prosper. 

IV.  In  a  criminal,  especially  in  a  capital  case,  so  long 
as  your  cause  stands  well,  ask  but  few  questions ;  and 
be  certain  never  to  ask  any  the  answer  to  which,  if 
against  you,  may  destroy  your  client,  unless  you  know 
the  witness  perfectly  well,  and  know  that  his  answer  will 

139 


THE    ART    OF    CROSS-EXAMINATION 

be  favorable  equally  well ;  or  unless  you  be  prepared  with 
testimony  to  destroy  him,  if  he  play  traitor  to  the  truth 
and  your  expectations. 

V.  An  equivocal  question  is  almost  as  much  to  be 
avoided  and  condemned  as  an  equivocal  answer ;  and  it 
always  leads  to,  or  excuses,  an  equivocal  answer.  Single- 
ness of  purpose,  clearly  expressed,  is  the  best  trait  in  the 
examination  of  witnesses,  whether  they  be  honest  or  the 
reverse.  Falsehood  is  not  detected  by  cunning,  but  by 
the  light  of  truth,  or  if  by  cunning,  it  is  the  cunning  of 
the  witness,  and  not  of  the  counsel. 

VI.  If  the  witness  determine  to  be  witty  or  refractory 
with  you,  you  had  better  settle  that  account  with  him  at 
Jirst,  or  its  items  will  increase  with  the  examination. 
Let  him  have  an  opportunity  of  satisfying  himself  either 
that  he  has  mistaken  yotir  power,  or  his  own.  But  in 
any  result,  be  careful  that  you  do  not  lose  your  temper ; 
anger  is  always  either  the  precursor  or  evidence  of 
assured  defeat  in  every  intellectual  conflict. 

VII.  Like  a  skilful  chess-player,  in  every  move,  fix 
your  mind  upon  the  combinations  and  relations  of  the 
game  —  partial  and  temporary  success  may  otherwise 
end  in  total  and  remediless  defeat. 

VIII.  Never  undervalue  your  adversary,  but  stand 
steadily  upon  your  guard ;  a  random  blow  may  be  just 
as  fatal  as  though  it  were  directed  by  the  most  consum- 
mate skill ;  the  negligence  of  one  often  cures,  and  some- 
times renders  effective,  the  blunders  of  another. 

140 


GOLDEN    RULES    FOR    EXAMlNINCi    wrrNESSP:S 

IX.  Be  respectful  to  the  court  and  to  the  jury;  kind 
to  your  colleague  ;  civil  to  your  antagonist ;  but  never 
sacrifice  the  slightest  principle  of  duty  to  an  overweening 
deference  toward  citlicr. 

In  "The  Advocate,  his  Training,  Practice,  Rights,  and 
Duties,"  written  by  Cox,  and  published  in  England  about 
•  a  half  century  ago,  there  is  an  excellent  chapter  on  cross- 
examination,  to  which  the  writer  is  indebted  for  many 
suggestions.  Cox  closes  his  chapter  with  this  final 
admonition  to  the  students,  to  whom  his  book  is  evi- 
dently addressed  :  — 

"  In  concluding  these  remarks  on  cross-examination, 
the  rarest,  the  most  useful,  and  the  most  difficult  to  be 
acquired  of  the  accomplishments  of  the  advocate,  we 
would  again  urge  upon  your  attention  the  importance 
of  calm  discretion.  In  addressing  a  jury  you  may  some- 
times talk  without  having  anything  to  say,  and  no  harm 
will  come  of  it.  But  in  cross-examination  every  question 
that  does  not  advance  your  cause  injures  it.  If  you  have 
not  a  definite  object  to  attain,  dismiss  the  witness  with- 
out a  word.  There  are  no  harmless  questions  here ;  the 
most  apparently  unimportant  may  bring  destruction  or 
victory.  If  the  summit  of  the  orator's  art  has  been 
rightly  defined  to  consist  in  knowing  when  to  sit  down, 
that  of  an  advocate  may  be  described  as  knowing  when 
to  keep  his  seat.  Very  little  experience  in  our  courts 
will  teach  you  this  lesson,  for  every  day  will  show  to  your 
observant  eye  instances  of  self-destruction  brought  about 

141 


THE   ART    OF   CROSS-EXAMINATION 

by  imprudent  cross-examination.  Fear  not  that  your 
discreet  reserve  may  be  mistaken  for  carelessness  or 
want  of  self-reliance.  The  true  motive  will  soon  be 
seen  and  approved.  Your  critics  are  lawyers,  who  know 
well  the  value  of  discretion  in  an  advocate;  and  how 
indiscretion  in  cross-examination  cannot  be  compensated 
by  any  amount  of  ability  in  other  duties.  The  attorneys 
are  sure  to  discover  the  prudence  that  governs  your 
tongue.  Even  if  the  wisdom  of  your  abstinence  be  not 
apparent  at  the  moment,  it  will  be  recognized  in  the 
result.  Your  fame  may  be  of  slower  growth  than  that 
of  the  talker,  but  it  will  be  larger  and  more  enduring." 


142 


CHAPTER   X 

SOME   FAMOUS   CROSS-EXAMINERS   AND   THEIR   METHODS 


■*;> 


CHAPTER   X 

SOME    FAMOUS    CROSS-EXAMINERS    AND   THEIR    METHODS 

One  of  the  best  ways  to  acquire  the  art  of  cross- 
examination  is  to  study  the  methods  of  the  great  cross- 
examiners  who  serve  as  models  for  the  legal  profession. 

Indeed,  nearly  every  great  cross-examiner  attributes 
his  success  to  the  fact  of  having  had  the  opportunity 
to  study  the  art  of  some  great  advocate  in  actual 
practice. 

In  view  of  the  fact  also  that  a  keen  interest  is  always 
taken  in  the  personality  and  life  sketches  of  great  cross- 
examiners,  it  has  seemed  fitting  to  introduce  some  brief 
sketches  of  great  cross-examiners,  and  to  give  some  illus- 
trations of  their  methods. 

Sir  Charles  Russell,  Lord  Russell  of  Killowen,  who 
died  in  February,  1901,  while  he  was  Lord  Chief  Justice 
of  England,  was  altogether  the  most  successful  cross- 
examiner  of  modern  times.  Lord  Coleridge  said  of  him 
while  he  was  still  practising  at  the  bar,  and  on  one 
side  or  the  other  in  nearly  every  important  case  tried, 
"  Russell  is  the  biggest  advocate  of  the  century." 

It  has  been  said  that  his  success  in  cross-examination, 
like  his  success  in  everything,  was  due  to  his  force  of 

K  145 


THE   ART    OF    CROSS-EXAMINATION 

character.  It  was  his  striking  personality,  added  to  his 
skill  and  adroitness,  which  seemed  to  give  him  his  over- 
whelmins:  influence  over  the  witnesses  whom  he  cross- 
examined.  Russell  is  said  to  have  had  a  wonderful 
faculty  for  using  the  brain  and  knowledge  of  other  men. 
Others  might  possess  a  knowledge  of  the  subject  far  in 
excess  of  Russell,  but  he  had  the  reputation  of  being 
able  to  make  that  knowledge  valuable  and  use  it  in  his 
examination  of  a  witness  in  a  way  altogether  unexpected 
and  unique. 

Unlike  Rufus  Choate,  "  The  Ruler  of  the  Twelve," 
and  by  far  the  greatest  advocate  of  the  century  on  this 
side  of  the  water,  Russell  read  but  little.  He  belonged 
to  the  category  of  famous  men  who  "  neither  found  nor 
pretended  to  find  any  real  solace  in  books."  With 
Choate,  his  library  of  some  eight  thousand  volumes  was 
his  home,  and  "  his  authors  were  the  loves  of  his  life." 
Choate  used  to  read  at  his  meals  and  while  walking  in 
the  streets,  for  books  were  his  only  pastime.  Neither 
was  Russell  a  great  orator,  while  Choate  was  ranked  as 
"  the  first  orator  of  his  time  in  any  quarter  of  the  globe 
where  the  English  language  was  spoken,  or  who  was 
ever  seen  standing  before  a  jury  panel." 

Both  Russell  and  Choate  were  consummate  actors; 
they  were  both  men  of  genius  in  their  advocacy.  Each 
knew  the  precise  points  upon  which  to  seize ;  each 
watched  every  turn  of  the  jury,  knew  at  a  glance  what 
was  telling  with   them,  knew  how  to  use  to  the  best 

146 


SOME    FAMOUS    CROSS-EXAMINERS 

advantage  every  accident  that  might  arise  in  the  prog- 
ress of  the  case. 

"  One  day  a  junior  was  taking  a  note  in  the  orthodox 
fashion.  Russell  was  taking  no  note,  but  he  was  thor- 
oughly on  the  alert,  glancing  about  the  court,  sometimes 
at  the  judge,  sometimes  at  the  jury,  sometimes  at  the 
witness  or  the  counsel  on  the  other  side.  Suddenly  he 
turned  to  the  junior  and  said,  'What  are  you  doing?' 
'  Taking  a  note,'  was  the  answer.  '  What  the  devil  do 
you  mean  by  saying  you  arc  taking  a  note  ?  Why  don't 
you  watch  the  case.'*'  he  burst  out.  He  had  been 
'watching'  the  case.  Something  had  happened  to  make 
a  change  of  front  necessary,  and  he  wheeled  his  col- 
leagues around  almost  before  they  had  time  to  grasp  the 
new  situation."  ^ 

Russell's  maxim  for  cross-examination  was,  "  Go 
straight  at  the  witness  and  at  the  point;  throw  your 
cards  on  the  table,  mere  finesse  English  juries  do  not 
appreciate." 

Speaking  of  Russell's  success  as  a  cross-examiner,  his 
biographer,  Barry  O'Brien  says:  "It  was  a  fine  sight  to 
see  him  rise  to  cross-examine.  His  very  appearance 
must  have  been  a  shock  to  the  witness,  —  the  manly, 
defiant  bearing,  the  noble  brow,  the  haughty  look,  the 
remorseless  mouth,  those  deep-set  eyes,  widely  opened, 
and  that  searching  glance  which  pierced  the  very  soul. 
'  Russell,'  said  a  member  of  the  Northern  Circuit,  '  pro- 

1  "  Life  of  Lord  Russell,''  Barry  O'Brien. 


THE    ART    OF    CROSS-EXAMINATION 

duced  the  same  effect  on  a  witness  that  a  cobra  produces 
on  a  rabbit.'  In  a  certain  case  he  appeared  on  the 
wrong  side.  Thirty-two  witnesses  were  called,  thirty-one 
on  the  wrong  side,  and  one  on  the  right  side.  Not  one 
of  the  thirty-one  was  broken  down  in  cross-examination ; 
but  the  one  on  the  right  side  was  utterly  annihilated  by 
Russell. 

" '  How  is  Russell  getting  on  ? '  a  friend  asked  one  of 
the  judges  of  the  Parnell  Commission  during  the  days 
of  Piorott's  cross-examination.  *  Master  Charlie  is  bowl- 
ing  very  straight,'  was  the  answer.  '  Master  Charlie ' 
always  bowled  '  very  straight,'  and  the  man  at  the  wicket 
generally  came  quickly  to  grief.  I  have  myself  seen 
him  approach  a  witness  with  great  gentleness  —  the 
gentleness  of  a  lion  reconnoitring  his  prey.  I  have  also 
seen  him  fly  at  a  witness  with  the  fierceness  of  a  tiger. 
But,  gentle  or  fierce,  he  must  have  always  looked  a  very 
ugly  object  to  the  man  who  had  gone  into  the  box  to 
lie." 

Rufus  Choate  had  little  of  Russell's  natural  force 
with  which  to  command  his  witnesses ;  his  effort  was  to 
magnetize,  he  was  called  "  the  wizard  of  the  court  room." 
He  employed  an  entirely  different  method  in  his  cross- 
examinations.  He  never  assaulted  a  witness  as  if  de- 
termined to  browbeat  him.  "  Commenting  once  on  the 
cross-examination  of  a  certain  eminent  counsellor  at  the 
Boston  Bar  with  decided  disapprobation,  Choate  said, 
'  This  man  goes  at  a  witness  in  such  a  way  that  he  in- 

148 


somp:  famous  cross-examinp:rs 

evitably  gets  the  jury  all  on  the  side  of  the  witness.  I 
do  not,'  he  added,  '  think  that  is  a  good  plan.'  His  own 
plan  was  far  more  wary,  intelligent,  and  circumspect. 
He  had  a  profound  knowledge  of  human  nature,  of  the 
springs  of  human  action,  of  the  thoughts  of  human 
hearts.  To  get  at  these  and  make  them  patent  to  the 
jury,  he  would  ask  only  a  few  telling  questions  —  a  very 
few  questions,  but  generally  every  one  of  them  was  fired 
point-blank,  and  hit  the  mark.  His  motto  was:  'Never 
cross-examine  any  more  than  is  absolutely  necessary. 
If  you  don't  break  your  witness,  he  breaks  you.'  He 
treated  every  man  who  appeared  like  a  fair  and  honest 
person  on  the  stand,  as  if  upon  the  presumption  that  he 
was  a  gentleman ;  and  if  a  man  appeared  badly,  he 
demolished  him,  but  with  the  air  of  a  surgeon  perform- 
ing a  disagreeable  amputation  —  as  if  he  was  profoundly 
sorry  for  the  necessity.  Few  men,  good  or  bad,  ever 
cherished  any  resentment  against  Choate  for  his  cross- 
examination  of  them.  His  whole  style  of  address  to  the 
occupants  of  the  witness-stand  was  soothing,  kind,  and 
reassuring.  When  he  came  down  heavily  to  crush  a 
witness,  it  was  with  a  calm,  resolute  decision,  but  no 
asperity  —  nothing  curt,  nothing  tart."^ 

Choate's  idea  of  the  proper  length  of  an  address  to 
a  jury  was  that  "  a  speaker  makes  his  impression,  if  he 
ever  makes  it,  in  the  first  hou7',  sometimes  in  the  first 
fifteen  minutes ;   for  if  he  has  a  proper  and  firm  grasp 

^ "  Reminiscences  of  Rufus  Choate,"  Parker. 
149 


THE    ART   OF   CROSS-EXAMINATION 

of  his  case,,  he  then  puts  forth  the  outUne  of  his  grounds 
of  argument.  He  plays  the  overture^  which  hints  at  or 
announces  all  the  airs  of  the  coming  opera.  All  the 
rest  is  mere  filling  up :  answering  objections,  giving  one 
juryman  little  arguments  with  which  to  answer  the  ob- 
jections of  his  fellows,  etc.  Indeed,  this  may  be  taken 
as  a  fixed  rule,  that  the  popular  mind  can  never  be  vig- 
orously addressed,  deeply  moved,  and  stirred  and  fixed 
more  than  07ze  hour  in  any  single  address." 

What  Choate  was  to  America,  and  Erskine,  and  later 
Russell,  to  England,  John  Philpot  Curran  was  to  Ireland. 
He  ranked  as  a  jury  lawyer  next  to  Erskine.  The  son 
of  a  peasant,  he  became  Master  of  Rolls  for  Ireland  in 
1806.  He  had  a  small,  slim  body,  a  stuttering,  harsh, 
shrill  voice,  originally  of  such  a  diffident  nature  that  in 
the  midst  of  his  first  case  he  became  speechless  and 
dropped  his  brief  to  the  floor,  and  yet  by  perseverance 
and  experience  he  became  one  of  the  most  eloquent  and 
powerful  forensic  advocates  of  the  world.  As  a  cross- 
examiner  it  was  said  of  Curran  that  "  he  could  unravel 
the  most  ingenious  web  which  perjury  ever  spun,  he 
could  seize  on  every  fault  and  inconsistency,  and  build 
on  them  a  denunciation  terrible  in  its  earnestness."  ^ 

It  was  said  of  Scarlett,  Lord  Abinger,  that  he  won 
his  cases  because  there  were  twelve  Sir  James  Scarletts 
in  the  jury-box.  He  became  one  of  the  leading  jury 
lawyers  of  his  time,  so  far  as  winning  verdicts  was  con- 

^  "Life  Sketches  of  Eminent  Lawyers,"  Gilbert  J.  Clark. 
150 


SOME    FAMOUS    CROSS-EXAM  I  NEKS 

cerned.  Scarlett  used  to  wheedle  the  juries  over  the 
weak  places  in  his  case.  Choate  would  rush  them  right 
over  with  that  enthusiasm  which  he  put  intr)  everything, 
"with  fire  in  his  eye  and  fury  on  his  tongue."  Scarlett 
would  level  himself  right  down  to  each  juryman,  while 
he  flattered  and  won  them.  In  his  cross-examinations 
"  he  would  take  those  he  had  to  examine,  as  it  were  by 
the  hand,  made  them  his  friends,  entered  into  familiar 
conversation  with  them,  encouraged  them  to  tell  him 
what  would  best  answer  his  purpose,  and  thus  secured  a 
victory  without  appearing  to  commence  a  conflict." 

A  story  is  told  about  Scarlett  by  Justice  Wightman  who 
was  leaving  his  court  one  day  and  found  himself  walking 
in  a  crowd  alongside  a  countryman,  whom  he  had  seen,  day 
by  day,  serving  as  a  juryman,  and  to  whom  he  could  not 
help  speaking.  Liking  the  look  of  the  man,  and  finding 
that  this  was  the  first  occasion  on  which  he  had  been  at 
the  court.  Judge  Wightman  asked  him  what  he  thought 
of  the  leading  counsel.  "  Well,"  said  the  countryman, 
"  that  lawyer  Brougham  be  a  wonderful  man,  he  can  talk, 
he  can,  but  I  don't  think  nowt  of  Lawyer  Scarlett."  — 
"Indeed!"  exclaimed  the  judge,  "you  surprise  me,  for 
you  have  given  him  all  the  verdicts."  —  "  Oh,  there's  nowt 
in  that,"  was  the  reply,  "  he  be  so  lucky,  you  see,  he  be 
always  on  the  right  side."  ^ 

Choate  also  had  a  way  of  getting  himself  "  into  the 
jury-box,"  and  has  been  known  to  address  a  single  jury- 

1  "Curiosities  of  Law  and  Lawyers." 


THE   ART    OF    CROSS-EXAMINATION 

man,  who  he  feared  was  against  him,  for  an  hour  at  a 
time.  After  he  had  piled  up  proof  and  persuasion  all 
together,  one  of  his  favorite  expressions  was,  "  But  this 
is  only  half  my  case,  gentlemen,  I  go  now  to  the  main 
body  of  my  proofs." 

Like  Scarlett,  Erskine  was  of  medium  height  and 
slender,  but  he  was  handsome  and  magnetic,  quick  and 
nervous,  "  his  motions  resembled  those  of  a  blood  horse 
—  as  light,  as  limber,  as  much  betokening  strength  and 
speed."  He,  too,  lacked  the  advantage  of  a  college  edu- 
cation and  was  at  first  painfully  unready  of  speech.  In 
his  maiden  effort  he  would  have  abandoned  his  case, 
had  he  not  felt,  as  he  said,  that  his  children  were  tug- 
ging at  his  gown.  "  In  later  years,"  Choate  once  said  of 
him,  "  he  spoke  the  best  English  ever  spoken  by  an  ad- 
vocate." Once,  when  the  presiding  judge  threatened  to 
commit  him  for  contempt,  he  replied,  "  Your  Lordship 
may  proceed  in  what  manner  you  think  fit;  I  know  my 
duty  as  well  as  your  Lordship  knows  yours."  His  simple 
grace  of  diction,  quiet  and  natural  passion,  was  in  marked 
contrast  to  Rufus  Choate,  whose  delivery  has  been  de- 
scribed as  "  a  musical  flow  of  rhythm  and  cadence,  more 
like  a  long,  rising,  and  swelling  song  than  a  talk  or  an 
argument."  To  one  of  his  clients  who  was  dissatisfied 
with  Erskine's  efforts  in  his  behalf,  and  who  had  written 
his  counsellor  on  a  slip  of  paper,  "  I'll  be  hanged  if  I 
don't  plead  my  own  cause,"  Erskine  quietly  replied, 
"  You'll  be  hanged  if  you  do."      Erskine  boasted  that 

152 


SOMK    FAMOUS    CROSS-LXAMlNLkb 

in  twenty  years  lie  liad  never  been  kept  a  clay  from  C(jurt 
by  ill  liealth.  And  it  is  said  of  Curran  tliat  he  has  been 
known  to  rise  before  a  jury,  after  a  session  of  sixteen 
hours  with  only  twenty  minutes'  intermission,  and  make 
one  of  the  most  memorable  arguments  of  his  life. 

Among  the  more  modern  advocates  of  the  English 
Bar,  Sir  Henry  Hawkins  stands  out  conspicuously.  He 
is  reputed  to  have  taken  more  money  away  with  him 
from  the  Bar  tlian  any  man  of  his  generation.  His  lead- 
ing characteristic  when  at  the  Bar,  was  his  marvellous 
skill  in  cross-examination.  He  was  associated  with  Lord 
Coleridge  in  the  first  Tichborne  trial,  and  in  his  cross- 
examination  of  the  witnesses,  Baignet  and  Carter,  he 
made  his  reputation  as  "the  foremost  cross-examiner  in 
the  world."  ^  Sir  Richard  Webster  was  another  great 
cross-examiner.  He  is  said  to  have  received  $100,000  for 
his  services  in  the  trial  before  the  Parnell  Special  Commis- 
sion, in  which  he  was  opposed  to  Sir  Charles  Russell. 

Rufus  Choate  said  of  Daniel  Webster,  that  he  con- 
sidered him  the  grandest  lawyer  in  the  world.  And  on 
his  death-bed  Webster  called  Choate  the  most  brilliant 
man  in  America.  Parker  relates  an  episode  character- 
istic of  the  clashing  of  swords  between  these  two  idols 
of  the  American  Bar.  "  We  heard  Webster  once,  in 
a  sentence  and  a  look,  crush  an  hour's  argument  of 
Choate's  curious  workmanship ;  it  was  most  intellectu- 
ally wire-drawn  and  hair-splitting,  with  Grecian  sophis- 

^  •■  Life  Sketches  of  Eminent  Lawj-ers,'"  Clark. 

153 


THE   ART   OF    CROSS-EXAMINATION 

try,  and  a  subtlety  the  Leontine  Gorgias  might  have 
envied.  It  was  about  two  car-wheels,  which  to  common 
eyes  looked  as  like  as  two  eggs ;  but  Mr.  Choate,  by  a 
fine  line  of  argument  between  tweedle-dum  and  tweedle- 
dee,  and  a  discourse  on  '  the  fixation  of  points '  so  deep 
and  fine  as  to  lose  itself  in  obscurity,  showed  the  jury 
there  w^as  a  heaven-wide  difference  between  them. 
'  But,'  said  Mr.  Webster,  and  his  great  eyes  opened  wide 
and  black,  as  he  stared  at  the  big  twin  wheels  before 
him,  'gentlemen  of  the  jury,  there  they  are  —  look  at 
'em ; '  and  as  he  pronounced  this  answer,  in  tones  of  vast 
volume,  the  distorted  wheels  seemed  to  shrink  back 
again  into  their  original  similarity,  and  the  long  argu- 
ment on  the  '  fixation  of  points '  died  a  natural  death. 
It  was  an  example  of  the  ascendency  of  mere  character 
over  mere  intellectuality ;  but  so  much  greater,  never- 
theless, the  i7itellectualityr  ^ 

Jeremiah  Mason  was  quite  on  a  par  with  either  Choate 
or  Webster  before  a  jury.  His  style  was  conversational 
and  plain.  He  was  no  orator.  He  would  go  close  up 
to  the  jury-box,  and  in  the  plainest  possible  logic  force 
conviction  upon  his  hearers.  Webster  said  he  "  owed 
his  own  success  to  the  close  attention  he  was  compelled 
to  pay  for  nine  successive  years,  day  by  day,  to  Mason's 
efforts  at  the  same  Bar."  As  a  cross-examiner  he  had  no 
peer  at  the  New  England  Bar. 

In  the  history  of  our  own  New  York   Bar  there  have 

^  "  Reminiscences  of  Rufus  Clioate,"  Parker. 


SOMK    FAMOUS    CROSS-EXAMINKRS 

been,  iDrobably,  but  few  equals  of  Judge  William  Fuller- 
ton  as  a  cross-cxamincr.  He  was  famous  for  his  calmness 
and  mildness  of  manner,  his  rapidly  repeated  questions  ; 
his  sallies  of  wit  interwoven  with  his  questions,  and  an 
ingenuity  of  method  quite  his  own. 

Fullerton's  cross-examinations  in  the  celebrated  Tilton 
vs.  Henry  Ward  Beecher  case  gave  him  an  international 
reputation,  and  were  considered  the  best  ever  heard  in 
this  country.  And  yet  these  very  examinations,  labori- 
ous and  brilliant,  were  singularly  unproductive  of  results, 
owing  probably  to  the  unusual  intelligence  and  shrewd- 
ness of  the  witnesses  themselves.  The  trial  as  a  whole 
was  by  far  the  most  celebrated  of  its  kind  the  New  York 
courts  have  ever  witnessed.  One  of  the  most  eminent 
of  Christian  preachers  was  charged  with  using  the  per- 
suasive powers  of  his  eloquence,  strengthened  by  his 
religious  influence,  to  alienate  the  affections  and  destroy 
the  probity  of  a  member  of  his  church  —  a  devout  and 
theretofore  pure-souled  woman,  the  wife  of  a  long-loved 
friend.  He  was  charged  with  continuing  the  guilty  rela- 
tion during  the  period  of  a  year  and  a  half,  and  of  cloak- 
ing the  offence  to  his  own  conscience  and  to  hers  under 
specious  words  of  piety;  of  invoking  first  divine  blessing 
on  it,  and  then  divine  guidance  out  of  it ;  and  finally  of 
adding  perjury  to  seduction  in  order  to  escape  the  con- 
sequences. His  accusers,  moreover,  Mr.  Tilton  and  Mr. 
Moulton,  were  persons  of  public  reputation  and  honorable 
station  in  life. 

155 


THE   ART    OF   CROSS-EXAMINATION 

The  length  and  complexity  of  Fullerton's  cross-exami- 
nations preclude  any  minute  mention  of  them  here. 
Once  when  he  found  fault  with  Mr.  Beecher  for  not 
answering  his  questions  more  freely  and  directly,  the 
reply  was   frankly  made,  "  /  am  afraid  of  you  !  " 

While  cross-examining  Beecher  about  the  celebrated 
"  ragged  letter,"  Fullerton  asked  why  he  had  not  made 
an  explanation  to  the  church,  if  he  was  innocent.  Beecher 
answered  that  he  was  keeping  his  part  of  the  compact  of 
silence,  and  added  that  he  did  not  believe  the  others  were 
keeping  theirs.  There  was  audible  laughter  throughout 
the  court  room  at  this  remark,  and  Judge  Neilson  ordered 
the  court  ofHcer  to  remove  from  the  court  room  any  per- 
son found  offending  —  "  Except  the  counsel,"  spoke  up 
Mr.  Fullerton.  Later  the  cross-examiner  exclaimed  im- 
patiently to  Mr.  Beecher  that  he  was  bound  to  find  out 
all  about  these  things  before  he  got  through,  to  which 
Beecher  retorted,  "  I  don't  think  you  are  succeeding  very 
well." 

Mr.  Fullerton  (in  a  voice  like  thunder).  "  Why  did  you 
not  rise  up  and  deny  the  charge }  " 

Mr.  Beecher  (putting  into  his  voice  all  that  marvellous 
magnetic  force,  which  so  distinguished  him  from  other 
men  of  his  time).  "  Mr.  Fullerton,  that  is  not  my  habit 
of  mind,  nor  my  manner  of  dealing  with  men  and 
things." 

Mr.  Fullerton.  "  So  I  observe.  You  say  that  Theo- 
dore Tilton's  charge  of  intimacy  with  his  wife,  and  the 

156 


SOME    FAMOUS    CROSS-FCXAMINERS 

charges  made  by  your  church   and  by  the  committee  of 
your  church,  made  no  impression  on  you  ?  " 

Mr.  Becchcr  (shortly).    "  Not  the  slightest" 

At  this  juncture  Mr.  Thomas  G.  Sherman,  Beecher's 
personal  counsel,  jumped  to  his  client's  aid,  and  remarked 
that  it  was  a  sinQ:ular  coincidence  that  when  counsel  had 
not  the  record  before  him,  he  never  quoted  correctly. 

Mr.  Fuller  ton  (addressing  the  court  impressively). 
"When  Mr.  Sherman  is  not  impertinent,  he  is  nothing 
in  this  case." 

Judge  Neilson  (to  the  rescue).  "  Probably  counsel 
thought  —  " 

Mr.  Fullerton  (interrupting).  "What  Mr.  Sherman 
thinks,  your  Honor,  cannot  possibly  be  of  sufficient 
importance  to  take  up  the  time  either  of  the  court  or 
opposing  counsel." 

"  Are  you  in  the  habit  of  having  your  sermons  pub- 
Hshed  ? "  continued  Mr.  Fullerton.  Mr.  Beecher  ac- 
knowledged that  he  was,  and  also  that  he  had  preached 
a  sermon  on  "  The  Nobility  of  Confession." 

Mr.  Sherman  (sarcastically).  "  I  hope  Mr.  Fullerton 
is  not  going  to  preach  us  a  sermon." 

Mr.  Ftdlerton.  "  I  would  do  so  if  I  thought  I  could 
convert  brother  Sherman." 

Mr.  Beecher  (quietly).  "  I  will  be  happy  to  give  you 
the  use  of  my  pulpit." 

Mr.  Fullerton  (laughing).  "  Brother  Sherman  is  the 
only  audience  I  shall  want." 

157 


THE   ART    OF    CROSS-EXAMINATION 

Mr.  Beecher  (sarcastically).  "  Perhaps  he  is  the  only 
audience  you  can  get." 

Mr.  Ftillerton.  "  If  I  succeed  in  converting  brother 
Sherman,  I  will  consider  my  work  as  a  Christian  minister 
complete." 

Mr.  Fullerton  then  read  a  passage  from  the  sermon, 
the  effect  of  which  was  that  if  a  person  commits  a  great 
sin,  and  the  exposure  of  it  would  cause  misery,  such  a 
person  would  not  be  justified  in  confessing  it,  merely  to 
relieve  his  own  conscience.  Mr.  Beecher  admitted  that 
he  still  considered  that  "  sound  doctrine." 

At  this  point  Mr.  Fullerton  turned  to  the  court,  and 
pointing  to  the  clock,  said,  "  Nothing  comes  after  the 
sermon,  I  believe,  but  the  benediction."  His  Honor 
took  the  hint,  and  the  proceedings  adjourned.^ 

In  this  same  trial  Hon.  William  M.  Evarts,  as  leading 
counsel  for  Mr.  Beecher,  heightened  his  already  inter- 
national reputation  as  an  advocate.  It  was  Mr.  Evarts's 
versatility  in  the  Beecher  case  that  occasioned  so  much 
comment.  Whether  he  was  examining  in  chief  or  on 
cross,  in  the  discussion  of  points  of  evidence,  or  in  the 
summing  up,  he  displayed  equally  his  masterly  talents. 
His  cross-examination  of  Theodore  Tilton  was  a  master- 
piece. His  speeches  in  court  were  clear,  calm,  and  logi- 
cal. Mr.  Evarts  was  not  only  a  great  lawyer,  but  an 
orator  and  statesman  of  the  hiorhest  distinction.     He  has 

o 

^  Extracts  from  the  daily  press  accounts  of  the  proceedings  of  one  of  the 
thirty  days  of  the  trial,  as  reported  in  "Modern  Jury  Trials,"  Donovan. 

158 


SOME    FAMOUS    CROSS-KXAMINKRS 

been  called  "the  Prince  of  the  American  Bar."  He 
was  a  gentleman  of  high  scholarship  and  fine  literary 
tastes.  His  manner  in  the  trial  of  a  case  has  been 
described  by  some  one  as  "all  head,  nose,  voice,  and 
forefinger."  He  was  five  feet  seven  inches  tall,  thin  and 
slender,  "  with  a  face  like  parchment." 

Mr.  Joseph  H.  Choate  once  told  me  he  considered 
that  he  owed  his  own  success  in  court  to  the  nine  years 
during  which  he  acted  as  Mr.  Evarts's  junior  in  the  trial 
of  cases.  No  one  but  Mr.  Choate  himself  would  have 
said  this.  His  transcendent  genius  as  an  advocate  could 
not  have  been  acquired  from  any  tutelage  under  Mr. 
Evarts.  When  Mr.  Choate  accepted  his  appointment  as 
Ambassador  to  the  Court  of  St.  James,  he  retired  from 
the  practice  of  the  law;  and  it  is  therefore  permissible  to 
comment  upon  his  marvellous  talents  as  a  jury  lawyer. 
He  was  not  only  easily  the  leading  trial  lawyer  of  the 
New  York  Bar,  but  was  by  many  thought  to  be  the 
representative  lawyer  of  the  American  Bar.  Surely  no 
man  of  his  time  was  more  successful  in  winning  juries. 
His  career  was  one  uninterrupted  success.  Not  that  he 
shone  especially  in  any  particular  one  of  the  duties  of  the 
trial  lawyer,  but  he  was  preeminent  in  the  quality  of  his 
humor  and  keenness  of  satire.  His  whole  conduct  of  a 
case,  his  treatment  of  witnesses,  of  the  court,  of  opposing 
counsel,  and  especially  of  the  jury,  were  so  irresistibly 
fascinating  and  winning  that  he  carried  ever}^thing  before 
him.     One  would  emerge  from  a  three  weeks'  contest 

159 


THE    ART    OF    CROSS-EXAMINATION 

with  Choate  in  a  state  almost  of  mental  exhilaration, 
despite  the  jury's  verdict. 

It  was  not  so  with  the  late  Edward  C.  James ;  a  contest 
with  him  meant  great  mental  and  physical  fatigue  for 
his  opponent.  James  was  ponderous  and  indefatigable. 
His  cross-examinations  were  labored  in  the  extreme. 
His  manner  as  an  examiner  was  dignified  and  forceful, 
his  mind  always  alert  and  centred  on  the  subject  before 
him;  but  he  had  none  of  Mr.  Choate's  fascination  or 
brilliancy.  He  was  dogged,  determined,  heavy.  He 
would  pound  at  you  incessantly,  but  seldom  reached  the 
mark.  He  literally  wore  out  his  opponent,  and  could 
never  realize  that  he  was  on  the  wrong  side  of  a  case 
until  the  foreman  of  the  jury  told  him  so.  Even  then 
he  would  want  the  jury  polled  to  see  if  there  was  not 
some  mistake.  James  never  smiled  except  in  triumph 
and  when  his  opponent  frowned.  When  Mr.  Choate 
smiled,  you  couldn't  help  smiling  with  him.  During  the 
last  ten  years  of  his  life  James  was  found  on  one  side  or 
the  other  of  most  of  the  important  cases  that  were  tried. 
He  owed  his  success  to  his  industrious  and  indefatigable 
qualities  as  a  fighter ;  not,  I  think,  to  his  art. 

James  T.  Brady  was  called  "the  Curran  of  the  New 
York  Bar."  His  success  was  almost  entirely  due  to  his 
courtesy  and  the  marvellous  skill  of  his  cross-examina- 
tions. He  had  a  serene,  captivating  manner  in  court, 
and  was  one  of  the  foremost  orators  of  his  time.  He 
has  the  proud  record  of  having  defended  fifty  men  on 

1 60 


SOMK    i'AMOUS    CROSS-KXAMINERS 

trial  for  their  lives,  and  of  saving  every  one  of  them  from 
the  gallows. 

On  the  other  hand,  William  A.  Beech,  "the  Hamlet 
of  the  American  Bar,"  was  a  poor  cross-examiner.  He 
treated  all  his  witnesses  alike.  He  was  methodical,  but 
of  a  domineering  manner.  He  was  slow  to  attune  him- 
self to  an  unexpected  turn  in  a  case  he  might  be  con- 
ducting. He  lost  many  cases  and  was  not  fitted  to 
conduct  a  desperate  one.  It  was  as  a  court  orator  that 
he  was  preeminent.  His  speech  in  the  Beecher  case 
alone  would  have  made  him  a  reputation  as  a  consum- 
mate orator.  His  vocabulary  was  suiprisingly  rich  and 
his  voice  wonderfully  winning. 

It  is  said  of  James  W.  Gerard,  the  elder,  that  "  he  ob- 
tained the  greatest  number  of  verdicts  against  evidence 
of  any  one  who  ever  practised  at  the  New  York  Bar.  He 
was  full  of  expedients  and  possessed  extraordinary  tact. 
In  his  profound  knowledge  of  human  nature  and  his 
ready  adaptation,  in  the  conduct  of  trials,  to  the  pecu- 
liarities, caprices,  and  whims  of  the  different  juries  before 
whom  he  appeared  he  was  almost  without  a  rival.  .  .  . 
Any  one  who  witnessed  the  telling  hits  made  by  Mr. 
Gerard  on  cross-examination,  and  the  sensational  inci- 
dents sprung  by  him  upon  his  opponents,  the  court,  and 
the  jury,  would  have  thought  that  he  acted  upon  the 
inspiration  of  the  moment  —  that  all  he  did  and  all  he 
said  was  impromptu.  In  fact,  Mr.  Gerard  made  thorough 
preparation  for  trial.  Generally  his  hits  in  cross-exami- 
L  i6i 


THE   ART   OF    CROSS-EXAMINATION 

nation  were  the  result  of  previous  preparation.  He 
made  briefs  for  cross-examination.  To  a  large  extent  his 
flashes  of  wit  and  his  extraordinary  and  grotesque  humor 
were  well  pondered  over  and  studied  up  beforehand."  ^ 

Justice  Miller  said  of  Roscoe  Conkling  that  "  he  was 
one  of  the  greatest  men  intellectually  of  his  time."  He 
was  more  than  fifty  years  of  age  when  he  abandoned  his 
arduous  public  service  at  Washington,  and  opened  an 
office  in  New  York  City.  During  his  six  years  at  the 
New  York  Bar,  such  was  his  success,  that  he  is  reputed 
to  have  accumulated,  for  a  lawyer,  a  very  large  fortune. 
He  constituted  himself  a  barrister  and  adopted  the  plan 
of  acting  only  as  counsel.  He  was  fluent  and  eloquent 
of  speech,  most  thorough  in  the  preparation  of  his  cases, 
and  an  accomplished  cross-examiner.  Despite  his  public 
career,  he  said  of  himself,  "  My  proper  place  is  to  be  be- 
fore twelve  men  in  the  box."  Conkling  used  to  study 
for  his  cross-examinations,  in  important  cases,  with  the 
most  painstaking  minuteness.  In  the  trial  of  the  Rev. 
Henry  Burge  for  murder,  Conkling  saw  that  the  case 
was  likely  to  turn  upon  the  cross-examination  of  Dr. 
Swinburne,  who  had  performed  the  autopsy.  The 
charge  of  the  prosecution  was  that  Mrs.  Burge  had 
been  strangled  by  her  husband,  who  had  then  cut  her 
throat.  In  order  to  disprove  this  on  cross-examination, 
Mr.  Conkling  procured  a  body  for  dissection  and  had 
dissected,  in  his  presence,  the  parts  of  the  body  that  he 

^  "  Extraordinary  Cases,"  Henry  Lauran  Clinton. 
162 


SOME    FAMOUS   CROSS-EXAMINERS 

wished  to  study.  As  tlic  result  of  Dr.  Swinburne's  cross- 
examination  at  the  trial,  the  presiding  judge  felt  com- 
pelled to  declare  the  evidence  so  entirely  untrustworthy 
that  he  would  decline  to  submit  it  to  the  jury  and  directed 
that  the  prisoner  be  set  at  liberty. 

This  studious  preparation  for  cross-examination  was  one 
of  the  secrets  of  the  success  of  Benjamin  F.  Butler.  He 
was  once  known  to  have  spent  days  in  examining  all  parts 
of  a  steam-engine,  and  even  learning  to  drive  one  himself, 
in  order  to  cross-examine  some  witnesses  in  an  impor- 
tant case  in  which  he  had  been  retained.  At  another 
time  Butler  spent  a  week  in  the  repair  shop  of  a  rail- 
road, part  of  the  time  with  coat  off  and  hammer  in  hand, 
ascertaining  the  capabilities  of  iron  to  resist  pressure  — 
a  point  on  which  his  case  turned.  To  use  his  own  lan- 
guage :  "  A  lawyer  who  sits  in  his  office  and  prepares  his 
cases  only  by  the  statements  of  those  who  are  brought 
to  him,  will  be  very  likely  to  be  beaten.  A  lawyer  in 
full  practice,  who  carefully  prepares  his  cases,  must  study 
almost  every  variety  of  business  and  many  of  the 
sciences."  A  pleasant  humor  and  a  lively  wit,  coupled 
with  wonderful  thoroughness  and  acuteness,  were  But- 
ler's leading  characteristics.  He  was  not  a  great  lawyer, 
nor  even  a  great  advocate  like  Rufus  Choate,  and  yet 
he  would  frequently  defeat  Choate.  His  cross-examina- 
tion was  his  chief  weapon.  Here  he  was  fertile  in  re- 
source and  stratagem  to  a  degree  attained  by  few  others. 
Choate  had  mastered  all  the  little   tricks  of  the    trial 

163 


THE    ART    OF    CROSS-EXAMINATION 

lawyer,  but  he  attained  also  to  the  grander  thoughts 
and  the  logical  powers  of  the  really  great  advocate. 
Butler's  success  depended  upon  zeal,  combined  with 
shrewdness  and  not  overconscientious  trickery. 

In  his  autobiography,  Butler  gives  several  examples 
of  what  he  was  pleased  to  call  his  legerdemain,  and  to 
believe  were  illustrations  of  his  skill  as  a  cross-examiner. 
They  are  quoted  from  "  Butler's  Book,"  but  are  not  re- 
printed as  illustrations  of  the  subtler  forms  of  cross- 
examination,  but  rather  as  indicative  of  the  tricks  to 
which  Butler  owed  much  of  his  success  before  country 
juries. 

"  When  I  was  quite  a  young  man  I  was  called  upon  to 
defend  a  man  for  homicide.  He  and  his  associate  had 
been  engaged  in  a  quarrel  which  proceeded  to  blows 
and  at  last  to  stones.  My  client,  with  a  sharp  stone, 
struck  the  deceased  in  the  head  on  that  part  usually 
called  the  temple.  The  man  went  and  sat  down  on  the 
curbstone,  the  blood  streaming  from  his  face,  and  shortly 
afterward  fell  over  dead. 

"  The  theory  of  the  government  was  that  he  died  from 
the  wound  in  the  temporal  artery.  My  theory  was  that 
the  man  died  of  apoplexy,  and  that  if  he  had  bled  more 
from  the  temporal  artery,  he  might  have  been  saved  — 
a  wide  enough  difference  in  the  theories  of  the  cause  of 
death. 

"  Of  course  to  be  enabled  to  carry  out  my  proposition 
I  must  know  all  about  the  temporal  artery,  —  its  location, 

164 


SOME    FAMOUS    CROSS-KXAMINKRS 

its  functions,  its  capabilities  iu  allow  the  bloorl  to  pass 
through  it,  and  in  how  short  a  time  a  man  could  bleed 
to  death  through  the  temporal  artery ;  also,  how  far  ex- 
citement in  a  body  stirred  almost  to  frenzy  in  an  embit- 
tered conflict,  and  largely  under  the  influence  of  liquor 
on  a  hot  day,  would  tend  to  produce  apoplexy.  I  was 
relieved  on  these  two  points  in  my  subject,  but  relied 
wholly  upon  the  testimony  of  a  surgeon  that  the  man 
bled  to  death  from  the  cut  on  the  temporal  artery  from 
a  stone  in  the  hand  of  my  client.  That  surgeon  was 
one  of  those  whom  we  sometimes  see  on  the  stand,  who 
think  that  what  they  don't  know  on  the  subject  of  their 
profession  is  not  worth  knowing.  He  testified  positively 
and  distinctly  that  there  was  and  could  be  no  other  cause 
for  death  except  the  bleeding  from  the  temporal  artery, 
and  he  described  the  action  of  the  bleeding  and  the 
amount  of  blood  discharged. 

"  Upon  all  these  questions  I  had  thoroughly  prepared 
myself. 

"  Mr.  Butler.  '  Doctor,  you  have  talked  a  great  deal 
about  the  temporal  artery ;  now  will  you  please  describe 
it  and  its  functions }  I  suppose  the  temporal  arteiy  is  so 
called  because  it  supplies  the  flesh  on  the  outside  of  the 
skull,  especially  that  part  we  call  the  temples,  with  blood.' 

"  Witness.   '  Yes ;  that  is  so.' 

"  Mr.  Butler.  '  Very  well.  Where  does  the  temporal 
artery  take  its  rise  in  the  system  ?     Is  it  at  the  heart  ? ' 

"  Witness.    '  No,  the  aorta  is  the  only  artery  leaving  the 

165 


THE   ART    OF    CROSS-EXAMINATION 

heart  which  carries  blood  toward  the  head.  Branches 
from  it  carry  the  blood  up  through  the  opening  into  the 
skull  at  the  neck,  and  the  temporal  artery  branches  from 
one  of  these.' 

"  Ml".  Butler.  '  Doctor,  where  does  it  branch  off  from 
it  ?  on  the  inside  or  the  outside  of  the  skull  ? ' 

"  Wihiess.    '  On  the  inside.' 

"  Mr.  Butler.  '  Does  it  have  anything  to  do  inside  with 
supplying  the  brain  } ' 

"  Witness.    '  No.' 

"  Mr.  Butler.  '  Well,  doctor,  how  does  it  get  outside  to 
supply  the  head  and  temples  ? ' 

"  Witness.  '  Oh,  it  passes  out  through  its  appropriate 
opening  in  the  skull.' 

"  Mr.  Butler.    '  Is  that  through  the  eyes .? ' 

"  Witness.    '  No.' 

"  Mr.  Butler.    '  The  ears  ? ' 

"  Witness.    '  No.' 

"  Mr.  Butler.  '  It  would  be  inconvenient  to  go  through 
the  mouth,  would  it  not,  doctor  1 ' 

"  Here  I  produced  from  my  green  bag  a  skull.  '  I 
cannot  find  any  opening  on  this  skull  which  I  think  is 
appropriate  to  the  temporal  artery.  Will  you  please 
point  out  the  appropriate  opening  through  which  the 
temporal  artery  passes  from  the  inside  to  the  outside  of 
the  skull  ? ' 

"  He  was  utterly  unable  so  to  do. 

"  Mr.  Butler.   '  Doctor,  I  don't  think  I  will  trouble  you 

i66 


SOME    FAMOUS    CROSS-KXAMINERS 

any  further;  you  can  step  down.'     He  did  s(;,  and  my 
client's  life  was  saved  on  tliat  point. 

"  The  temporal  artery  doesn't  go  inside  the  skull  at  all. 

"  I  had  a  young  client  who  was  on  a  railroad  car  when 
it  was  derailed  by  a  broken  switch.  The  car  ran  at  con- 
siderable speed  over  the  cross-ties  for  some  distance,  and 
my  client  was  thrown  up  and  down  with  great  violence 
on  his  seat.  After  the  accident,  when  he  recovered  from 
the  bruising,  it  was  found  that  his  nervous  .system  had 
been  wholly  shattered,  and  that  he  could  not  control  his 
nerves  in  the  slightest  degree  by  any  act  of  his  will. 
When  the  case  came  to  trial,  the  production  of  the  pin 
by  which  the  position  of  the  switch  was  controlled,  two- 
thirds  worn  away  and  broken  off,  settled  the  liability  of 
the  road  for  any  damages  that  occurred  from  that  cause, 
and  the  case  resolved  itself  into  a  question  of  the  amount 
of  damages  only.  My  claim  was  that  my  client's  condi- 
tion was  an  incurable  one,  arising  from  the  injury  to  the 
spinal  cord.  The  claim  put  forward  on  behalf  of  the 
railroad  was  that  it  was  simply  nervousness,  which 
probably  would  disappear  in  a  short  time.  The  sur- 
geon who  appeared  for  the  road  claimed  the  privilege 
of  examining  my  client  personally  before  he  should 
testify.  I  did  not  care  to  object  to  that,  and  the  doctor 
who  was  my  witness  and  the  railroad  surgeon  went  into 
the  consultation  room  together  and  had  a  full  examina- 
tion in  which  I  took  no  part,  having  looked  into  that 
matter  before. 

167 


THE   ART   OF    CROSS-EXAMINATION 

"  After  some  substantially  immaterial  matters  on  the 
part  of  the  defence,  the  surgeon  was  called  and  was  quali- 
fied as  a  witness.  He  testified  that  he  was  a  man  of 
great  position  in  his  profession.  Of  course  in  that  I 
was  not  interested,  for  I  knew  he  could  qualify  himself 
as  an  expert.  In  his  direct  examination  he  spent  a  good 
deal  of  the  time  in  giving  a  very  learned  and  somewhat 
technical  description  of  the  condition  of  my  client.  He 
admitted  that  my  client's  nervous  system  was  very  much 
shattered,  but  he  also  stated  that  it  would  probably  be 
only  temporary.  Of  all  this  I  took  little  notice ;  for,  to 
tell  the  truth,  I  had  been  up  quite  late  the  night  before 
and  in  the  warm  court  room  felt  a  little  sleepy.  But  the 
counsel  for  the  road  put  this  question  to  him :  — 

" '  Doctor,  to  what  do  you  attribute  this  condition  of 
the  plaintiff  which  you  describe  ? ' 

"  '  Hysteria,  sir  ;  he  is  hysterical.' 

"  That  waked  me  up.  I  said,  '  Doctor,  did  I  under- 
stand —  I  was  not  paying  proper  attention  —  to  what 
did  you  attribute  this  nervous  condition  of  my  client .'' ' 

" '  Hysteria,  sir.' 

"  I  subsided,  and  the  examination  went  on  until  it 
came  my  turn  to  cross-examine. 

"  Mr.  Butler.  '  Do  I  understand  that  you  think  this 
condition  of  my  client  wholly  hysterical  ? ' 

"  Witness.    '  Yes,  sir ;  undoubtedly.' 

"  Mr.  Butler.    '  And  therefore  won't  last  long } ' 

"  Witness,    '  No,  sir ;  not  likely  to.' 

i68 


SOME    FAMOUS    CROSS-KXA MINERS 

"  Mr.  Butler.  '  Well,  doctor,  let  us  sec ;  is  not  the 
disease  called  hysteria  and  its  effects  hysterics;  and 
isn't  it  true  that  hysteria,  hysterics,  hysterical,  all  come 
from  the  Greek  word  varepa  ?  * 

"  Witness.    '  It  may  be.' 

''Mr.  Butler.  'Don't  say  it  may,  doctor;  isn't  it? 
Isn't  an  exact  translation  of  the  Greek  word  vcrre/aa  the 
Enfjlish  word  "  womb  "  ?  ' 

"  Witness.    '  You  are  right,  sir.' 

'•'■Mr.  Butler.  'Well,  doctor,  this  morning  when  you 
examined  this  young  man  here,'  pointing  to  my  client, 
'  did  you  find  that  he  had  a  womb  ?  I  was  not  aware  of 
it  before,  but  I  will  have  him  examined  over  again  and  see 
if  I  can  find  it.    That  is  all,  doctor ;  you  may  step  down.'  " 

Robert  Ingersoll  took  part  in  numerous  noted  law- 
suits in  all  parts  of  the  country.  But  he  was  almost 
helpless  in  court  without  a  competent  junior.  He  was  a 
born  orator  if  ever  there  was  one.  Henry  Ward  Beecher 
regarded  him  as  "the  most  brilliant  speaker  of  the  Eng- 
lish tongue  in  any  land  on  the  globe."  He  was  not  a  pro- 
found lawyer,  however,  and  hardly  the  equal  of  the  most 
mediocre  trial  lawyer  in  the  examination  of  witnesses. 
Of  the  art  of  cross-examining  witnesses  he  knew  prac- 
tically nothing.  His  definition  of  a  lawyer,  to  use  his- 
own  words,  was  "  a  sort  of  intellectual  strumpet."  "  My 
ideal  of  a  great  lawyer,"  he  once  wrote,  "  is  that  great 
English  attorney  who  accumulated  a  fortune  of  a  million 
pounds,  and  left  it  all  in  his  will  to  make  a  home  for 

i6q 


THE   ART    OF   CROSS-EXAMINATION 

idiots,  declaring  that  he  wanted  to  give  it  back  to  the 
people  from  whom  he  took  it." 

Judge  Walter  H.  Sanborn  relates  a  conversation  he 
had  with  Judge  Miller  of  the  United  States  Court  about 
IngersoU.  "Just  after  Colonel  I ngersoU  had  concluded 
an  argument  before  Mr.  Justice  Miller,  while  on  Circuit 
I  came  into  the  court  and  remarked  to  Judge  Miller  that 
I  wished  I  had  got  there  a  little  sooner,  as  I  had  never 
heard  Colonel  IngersoU  make  a  legal  argument."  — 
"Well,"  said  Judge  Miller,  "you  never  will."^ 

Ingersoll's  genius  lay  in  other  directions.  Who  but 
IngersoU  could  have  written  the  following :  — 

"  A  little  while  ago  I  stood  by  the  grave  of  the  old 
Napoleon  —  a  magnificent  tomb  of  gilt  and  gold,  fit  al- 
most for  a  dead  deity,  and  gazed  upon  the  sarcophagus 
of  black  marble,  where  rest  at  last  the  ashes  of  that  rest- 
less man.  I  leaned  over  the  balustrade,  and  thought 
about  the  career  of  the  greatest  soldier  of  the  modern 
world.  I  saw  him  walking  upon  the  banks  of  the  Seine, 
contemplating  suicide ;  I  saw  him  at  Toulon ;  I  saw  him 
putting  down  the  mob  in  the  streets  of  Paris ;  I  saw  him 
at  the  head  of  the  army  in  Italy ;  I  saw  him  crossing  the 
bridge  of  Lodi,  with  the  tricolor  in  his  hand ;  I  saw  him 
in  Egypt,  in  the  shadows  of  the  Pyramids;  I  saw  him 
conquer  the  Alps,  and  mingle  the  eagles  of  France  with 
the  eagles  of  the  crags;  I  saw  him  at  Marengo,  at  Ulm, 
and  at  Austerlitz ;   I  saw  him  in  Russia,  where  the  infan- 

1  "Life  Sketches  of  Eminent  Lawyers,"  Gilbert  J.  Clark. 
170 


S(JMK    J'"AM()US    CROSS-KXAiMlNKRS 

try  of  the  snow  and  the  cavalry  of  the  wild  blast  scat- 
tered his  legions  like  winter's  withered  leaves.  I  saw 
him  at  Leipsic,  in  defeat  and  disaster;  driven  by  a  mill- 
ion bayonets  back  upon  Paris;  clutched  like  a  wild 
beast ;  banished  to  Elba.  I  saw  him  escape  and  retake 
an  empire  by  the  force  of  his  genius.  I  saw  him  upon 
the  frightful  field  of  Waterloo,  where  chance  and  fate 
combined  to  wreck  the  fortunes  of  their  former  king. 
And  I  saw  him  at  St.  Helena,  with  his  hands  crossed 
behind  him,  gazing  out  upon  the  sad  and  solemn  sea. 
I  thought  of  the  orphans  and  widows  he  had  made,  of 
the  tears  that  had  been  shed  for  his  glory,  and  of  the 
only  woman  who  had  ever  loved  him,  pushed  from  his 
heart  by  the  cold  hand  of  ambition.  And  I  said  I  would 
rather  have  been  a  French  peasant,  and  worn  wooden 
shoes ;  I  would  rather  have  lived  in  a  hut,  with  a  vine 
growing  over  the  door,  and  the  grapes  growing  purple  in 
the  kisses  of  the  autumn  sun.  I  would  rather  have  been 
that  poor  peasant,  with  my  loving  wife  by  my  side,  knit- 
ting as  the  day  died  out  of  the  sky,  with  my  children 
upon  my  knees,  and  their  arms  about  me.  I  would 
rather  have  been  that  man,  and  gone  down  to  the  tongue- 
less  silence  of  the  dreamless  dust,  than  to  have  been  that 
imperial  impersonation  of  force  and  murder,  known  as 
Napoleon  the  Great." 


171 


CHAPTER   XI 

THE     CROSS-EXAMINATION    OF    RICHARD     PIGOTT     BY    SIR 
CHARLES   RUSSELL   BEFORE   THE   PARNELL   COMMISSION 


CHAPTER   XI 

THE  CROSS-EXAMINATION  OF  RICHARD  PIGOTT  BY  SIR  CHARLES 
RUSSELL    BEFORE   THE    PARNELL    COMMISSION 

The  modern  method  of  studying  any  subject,  or  ac- 
quiring any  art,  is  the  inductive  method.  This  is 
illustrated  in  our  law  schools,  where  to  a  large  extent 
actual  cases  are  studied,  to  get  at  the  principles  of  law 
instead  of  acquiring  those  principles  solely  through  the 
a  priori  method  of  the  study  of  text-books. 

As  already  indicated,  this  method  is  also  the  only  way 
to  become  a  master  of  the  art  of  cross-examination,  and, 
in  addition  to  actual  personal  experience,  it  is  important 
to  study  the  methods  of  great  cross-examiners,  or  those 
whose  extended  experience  makes  them  safe  guides  to 
follow. 

Hence,  the  writer  believes  it  would  be  decidedly  help- 
ful to  the  students  of  the  art  of  cross-examination  to 
have  placed  before  them,  in  a  convenient  and  somewhat 
condensed  form,  some  good  illustrations  of  the  methods 
of  well-known  cross-examiners  as  exhibited  in  actual 
practice,  in  the  cross-examination  of  important  witnesses 
in  famous  trials. 

175 


THE   ART   OF   CROSS-EXAMINATION 

For  these  reasons,  and  the  further  fact  that  such  ex- 
amples are  interesting  as  a  study  of  human  nature,  I 
have  in  the  following  pages  introduced  the  cross-exami- 
nation of  some  important  witnesses  in  several  well-known 
cases. 

Probably  one  of  the  most  dramatic  and  successful  of 
the  more  celebrated  cross-examinations  in  the  history 
of  the  English  courts  is  Russell's  cross-examination  of 
Pigott  —  the  chief  witness  in  the  investigation  growing 
out  of  the  attack  upon  Charles  S.  Parnell  and  sixty-five 
Irish  members  of  Parliament,  by  name,  for  belonging  to 
a  lawless  and  even  murderous  organization,  whose  aim 
was  the  overthrow  of  English  rule. 

The  principal  charge  against  Parnell,  and  the  only  one 
that  interests  us  in  the  cross-examination  of  the  witness 
Pigott,  was  the  writing  of  a  letter  by  Parnell  which  the 
Times  claimed  to  have  obtained  and  published  in 
facsimile,  in  which  he  excused  the  murderer  of  Lord 
Frederick  Cavendish,  Chief  Secretary  for  Ireland,  and  of 
Mr.  Burke,  Under  Secretary,  in  Phoenix  Park,  Dublin, 
on  May  6,  1882.  One  particular  sentence  in  the  letter 
read,  "  I  cannot  refuse  to  admit  that  Burke  got  no  more 
than  his  deserts." 

The  publication  of  this  letter  naturally  made  a  great 
stir  in  Parliament  and  in  the  country  at  large.  Parnell 
stated  in  the  House  of  Commons  that  the  letter  was  a 
forgery,  and  later  asked  for  the  appointment  of  a  select 
committee  to  inquire  whether  the  facsimile   letter  was 

176 


CROSS-KXAMINA  rioN  OK  RICHARD  incorv 

a  forgery.  The  Government  refused  this  request,  but 
appointed  a  special  committee,  composed  of  three  judges, 
to  investigate  all  the  charges  made  by  the  Times. 

The  writer  is  indebted  again  to  Russell's  biographer, 
Mr.  O'Brien,  for  the  details  of  this  celebrated  case. 
Seldom  has  any  legal  controversy  been  so  graphically 
described  as  this  one.  One  seems  to  be  living  with 
Russell,  and  indeed  with  Mr.  O'Brien  himself,  through- 
out those  eventful  months.  We  must  content  ourselves, 
however,  with  a  reproduction  of  the  cross-examination 
of  Pigott  as  it  comes  from  the  stenographer's  minutes 
of  the  trial,  enlightened  by  the  pen  of  Russell's  facile 
biographer. 

Mr.  O'Brien  speaks  of  it  as  "the  event  in  the  life  of 
Russell  —  the  defence  of  Parnell."  In  order  to  under- 
take this  defence,  Russell  returned  to  the  Times  the 
retainer  he  had  enjoyed  from  them  for  many  previous 
years.  It  was  known  that  the  Times  had  bought  the 
letter  from  Mr.  Houston,  the  secretary  of  the  Irish 
Loyal  and  Patriotic  Union,  and  that  Mr.  Houston  had 
bought  it  from  Pigott.  But  how  did  Pigott  come  by 
it?  That  was  the  question  of  the  hour,  and  people 
looked  forward  to  the  day  when  Pigott  should  go  into 
the  box  to  tell  his  story,  and  when  Sir  Charles  Russell 
should  rise  to  cross-examine  him.  Mr.  O'Brien  writes: 
"  Pisfott's  evidence  in  chief,  so  far  as  the  letter  was  con- 
cerned,  came  practically  to  this :  he  had  been  employed 
by  the    Irish   Loyal  and   Patriotic    Union    to    hunt   up 

M  177 


THE   ART    OF    CROSS-EXAMINATION 

documents  which  might  incriminate  Parnell,  and  he  had 
bought  the  facsimile  letter,  with  other  letters,  in  Paris 
from  an  agent  of  the  Clan-na-Gael,  who  had  no  objection 
to  injuring  Parnell  for  a  valuable  consideration.  .  .  . 

"  During  the  whole  week  or  more  Russell  had  looked 
pale,  worn,  anxious,  nervous,  distressed.  He  was  impa- 
tient, irritable,  at  times  disagreeable.  Even  at  luncheon, 
half  an  hour  before,  he  seemed  to  be  thoroughly  out  of 
sorts,  and  gave  you  the  idea  rather  of  a  young  junior 
with  his  first  brief  than  of  the  most  formidable  advocate 
at  the  Bar.  Now  all  was  changed.  As  he  stood  facing 
Pigott,  he  was  a  picture  of  calmness,  self-possession, 
strength ;  there  was  no  sign  of  impatience  or  irritabil- 
ity ;  not  a  trace  of  illness,  anxiety,  or  care ;  a  slight  tinge 
of  color  lighted  up  the  face,  the  eyes  sparkled,  and  a 
pleasant  smile  played  about  the  mouth.  The  whole 
bearing  and  manner  of  the  man,  as  he  proudly  turned 
his  head  toward  the  box,  showed  courage,  resolution, 
confidence.  Addressing  the  witness  with  much  courtesy, 
while  a  profound  silence  fell  upon  the  crowded  court,  he 
began :  '  Mr.  Pigott,  would  you  be  good  enough,  with 
my  Lords'  permission,  to  write  some  words  on  that  sheet 
of  paper  for  me  ?  Perhaps  you  will  sit  down  in  order  to 
do  so  .-* '  A  sheet  of  paper  was  then  handed  t%  the  wit- 
ness. I  thought  he  looked  for  a  moment  surprised. 
This  clearly  was  not  the  beginning  that  he  had  ex- 
pected. He  hesitated,  seemed  confused.  Perhaps  Rus- 
sell observed  it.     At  all  events  he  added  quickly:  — 

,       ^7^ 


CROSS-EXAMINATION    OK    RICHARD    PIGOTT 

" '  Would  you  like  to  sit  down  ? ' 

"'Oh,  no,  thanks,'  replied  Pigott,  a  little  flurried. 

"  The  President.  '  Well,  but  I  think  it  is  better  that 
you  should  sit  down.  Here  is  a  table  upon  which  you 
can  write  in  the  ordinary  way  —  the  course  you  always 
pursue.' 

"  Pigott  sat  down  and  seemed  to  recover  his  equi- 
librium. 

'*  Russell.   '  Will  you  write  the  word  "  livelihood  "  ? ' 

"  Pigott  wrote. 

'^Russell.  'Just  leave  a  space.  Will  you  write  the 
word  "  likelihood  "  ? ' 

"  Pigott  wrote. 

"  Russell.  '  Will  you  write  your  own  name  ?  Will 
you  write  the  word  " proselytism,"  and  finally  (I  think 
I  will  not  trouble  you  at  present  with  any  more)  "  Pat- 
rick Egan  "  and  "  P.  Egan  " .? ' 

"  He  uttered  these  last  words  with  emphasis,  as  if  they 
imported  something  of  great  importance.  Then,  when 
Pigott  had  written,  he  added  carelessly,  '  There  is  one 
word  I  had  forgotten.  Lower  down,  please,  leaving 
spaces,  write  the  word  "  hesitancy." '  Then,  as  Pigott 
was  about  to  write,  he  added,  as  if  this  were  the  vital 
point,  'with  a  small  " h." '  Pigott  wrote  and  looked 
relieved. 

"  Russell.   '  Will  you  kindly  give  me  the  sheet .? ' 

"  Pigott  took  up  a  bit  of  blotting  paper  to  lay  on 
the  sheet,  when  Russell,  with  a  sharp  ring  in  his  voice, 

179 


THE   ART    OF    CROSS-EXAMINATION 

said  rapidly,  '  Don't  blot  it,  please.'  It  seemed  to  me 
that  the  sharp  ring  in  Russell's  voice  startled  Pigott. 
While  writing  he  had  looked  composed ;  now  again  he 
looked  flurried,  and  nervously  handed  back  the  sheet. 
The  attorney  general  looked  keenly  at  it,  and  then  said, 
with  the  air  of  a  man  who  had  himself  scored,  '  My 
Lords,  I  suggest  that  had  better  be  photographed,  if 
your  Lordships  see  no  objection.' 

''Russell  (turning  sharply  toward  the  attorney  general, 
and  with  an  angry  glance  and  an  Ulster  accent,  v/hich 
sometimes  broke  out  when  he  felt  irritated).  '  Do  not 
interrupt  my  cross-examination  with  that  request' 

"  Little  did  the  attorney  general  at  that  moment  know 
that,  in  the  ten  minutes  or  quarter  of  an  hour  which  it 
had  taken  to  ask  these  questions,  Russell  had  gained  a 
decisive  advantage.  Pigott  had  in  one  of  his  letters  to 
Pat  Egan  spelt  '  hesitancy '  thus,  '  hesitency.'  In  one  of 
the  incriminatory  letters  '  hesitancy  '  was  so  spelt ;  and 
in  the  sheet  now  handed  back  to  Russell,  Pigott  had 
written  '  hesitency,'  too.  In  fact  it  was  Pigott 's  spelling 
of  this  word  that  had  put  the  Irish  members  on  his 
scent.  Pat  Egan,  seeing  the  word  spelt  with  an  'e  '  in 
one  of  the  incriminatory  letters,  had  written  to  Parnell, 
saying  in  effect,  '  Pigott  is  the  forger.  In  the  letter 
ascribed  to  you  "  hesitancy  "  is  spelt  "  hesitency."  That 
is  the  way  Pigott  always  spells  the  word.'  These  things 
were  not  dreamt  of  in  the  philosophy  of  the  attorney 
general  when  he  interrupted  Russell's  cross-examination 

i8o 


CROSS-EXAMINATION    OF    RICHARD    PIGOTT 

with  the  request  that  the  sheet  '  had  better  be  photo- 
graphed.'      So   closed   the   first   round  of   the  combat. 

"  Russell  went  on  in  his  former  courteous  manner,  and 
Pigott,  who  had  now  completely  recovered  confidence, 
looked  once  more  like  a  man  determined  to  stand  to  his 
guns. 

"  Russell,  having  disposed  of  some  preliminary  points 
at  length  (and  after  he  had  been  perhaps  about  half  an 
hour  on  his  feet),  closed  with  the  witness. 

"  Russell.  '  The  first  publication  of  the  articles  "  Par- 
nellism  and  Crime  "  was  on  the  7th  March,  1887 .?  ' 

"  Pigott  (sturdily).    '  I  do  not  know.' 

"  Russell  (amiably).  '  Well,  you  may  assume  that  is  the 
date.' 

"  Pigott  (carelessly).    *  I  suppose  so.' 

"■Russell.  'And  you  were  aware  of  the  intended 
publication  of  the  correspondence,  the  incriminatory 
letters .? ' 

''Pigott  (firmly).    '  No,  I  was  not  at  all  aware  of  it.' 

"  Russell  (sharply,  and  with  the  Ulster  ring  in  his 
voice).    '  What } ' 

"  Pigott  (boldly).    '  No,  certainly  not.' 

''Russell  'Were  you  not  aware  that  there  were  grave 
charges  to  be  made  against  Mr.  Parnell  and  the  leading 
members  of  the  Land  League } ' 

"  Pigott  (positively).  '  I  was  not  aware  of  it  until  they 
actually  commenced.' 

181 


THE   ART    OF    CROSS-EXAMINATION 

^'Russell {2ig2im  with  the  Ulster  ring).    '  What? ' 

"  Pigott  (defiantly).  '  I  was  not  aware  of  it  until  the 
publication  actually  commenced.' 

"  Russell  (pausing,  and  looking  straight  at  the  witness). 
'  Do  you  swear  that } ' 

"  Pigott  (aggressively).    '  I  do.' 

"  Russell  (making  a  gesture  with  both  hands,  and  look- 
ing toward  the  bench).  '  Very  good,  there  is  no  mistake 
about  that' 

"  Then  there  was  a  pause ;  Russell  placed  his  hands 
beneath  the  shelf  in  front  of  him,  and  drew  from  it  some 
papers — Pigott,  the  attorney  general,  the  judges,  every 
one  in  court  looking  intently  at  him  the  while.  There 
was  not  a  breath,  not  a  movement.  I  think  it  was  the 
most  dramatic  scene  in  the  whole  cross-examination, 
abounding  as  it  did  in  dramatic  scenes.  Then,  handing 
Pigott  a  letter,  Russell  said  calmly  :  — 

"  '  Is  that  your  letter  ?  Do  not  trouble  to  read  it ;  tell 
me  if  it  is  your  letter.' 

"  Pigott  took  the  letter,  and  held  it  close  to  his  eyes 
as  if  reading  it. 

"  Russell  (sharply).    '  Do  not  trouble  to  read  it.' 

"  Pigott.    '  Yes,  I  think  it  is.' 

"  Russell  (with  a  frown).    '  Have  you  any  doubt  of  it  ? ' 

''Pigott.    'No.' 

"■Russell  (addressing  the  judges).  'My  Lords,  it  is 
from  Anderton's  Hotel,  and  it  is  addressed  by  the  wit- 
ness to  Archbishop  Walsh.     The  date,  my  Lords,  is  the 

182 


CROSS-EXAMINATION    OF    RICHARD    PIGOTT 

4th  of  March,  three  clays  before  the  first  appearance  of 
the  first  of  the  articles,  "Parnellism  and  Crime."' 

"  He  then  read  :  — 

"  '  Private  and  confidential.' 

"'My  Lord:  —  The  importance  of  the  matter  about 
which  I  write  will  doubtless  excuse  this  intrusion  on 
your  Grace's  attention.  Briefly,  I  wish  to  say  that  1 
have  been  made  aware  of  the  details  of  certain  proceed- 
ings that  are  in  preparation  with  the  object  of  destroying 
the  influence  of  the  Parnellite  party  in  Parliament.' 

"  Having  read  this  much  Russell  turned  to  Pigott  and 
said :  — 

" '  What  were  the  certain  proceedings  that  were  in 
preparation  ? ' 

"  Pigott.    '  I  do  not  recollect.' 

"  Russell  (resolutely).  '  Turn  to  my  Lords  and  repeat 
the  answer.' 

"  Pigott.   '  I  do  not  recollect' 

"  Russell.  '  You  swear  that  —  writing  on  the  4th  of 
March,  less  than  two  years  ago } ' 

''Pigott.    'Yes.' 

"  Russell.    '  You  do  not  know  what  that  referred  to } ' 

"  Pigott.    '  I  do  not  really.' 

"  Rtissell.    '  May  I  suggest  to  you  } ' 

"  Pigott.    '  Yes,  you  may.' 

"  Russell.  '  Did  it  refer  to  the  incriminatory  letters 
amono^  other  things } ' 

"  Pigott.   '  Oh,  at  that  date .?     No,  the  letters  had  not 

183 


THE   ART    OF   CROSS-EXAMINATION 

been  obtained,  I  think,  at  that  date,  had  they,  two  years 
ago  ? ' 

"  Russell  (quietly  and  courteously).  '  I  do  not  want  to 
confuse  you  at  all,  Mr.  Pigott.' 

"  Pigott.  '  Would  you  mind  giving  me  the  date  of 
that  letter?' 

"  RussclL    '  The  4th  of  March.' 

"  Pigott.    '  The  4th  of  March.' 

''  RicsselL  '  Is  it  your  impression  that  the  letters  had 
not  been  obtained  at  that  date } ' 

"  Pigott.  '  Oh,  yes,  some  of  the  letters  had  been  ob- 
tained before  that  date.' 

'■^Russell.  'Then,  reminding  you  that  some  of  the 
letters  had  been  obtained  before  that  date,  did  that  pas- 
sage that  I  have  read  to  you  in  that  letter  refer  to  these 
letters  among  other  things  "^ ' 

"  Pigott.  '  No,  I  rather  fancy  they  had  reference  to 
the  forthcoming  articles  in  the    Times' 

'^  Russell  (glancing  keenly  at  the  witness).  '  I  thought 
you  told  us  you  did  not  know  anything  about  the  forth- 
coming articles.' 

"  Pigott  (looking  confused).  '  Yes,  I  did.  I  find  now 
I  am  mistaken  —  that  I  must  have  heard  something 
about  them.' 

"  Russell  (severely).  '  Then  try  not  to  make  the  same 
mistake  again,  Mr.  Pigott.  "  Now,"  you  go  on  (continu- 
ing to  read  from  Pigott's  letter  to  the  archbishop),  "  I 
cannot  enter  more  fully  into  details  than  to  state  that  the 

184 


CROSS-EXAMINATION    OI'    RICHARIJ    V](]()T'y 

proceedings  referred  to  consist  in  the  i)ublication  of  cer- 
tain statements  purporting  to  prove  the  complicity  of 
Mr.  Parnell  himself,  and  some  of  his  supporters,  with 
murders  and  outrages  in  Ireland,  to  be  followed,  in  all 
probability,  by  the  institution  of  criminal  proceedings 
against  these  parties  by  the  Government.'" 

"  Having  finished  the  reading,  Russell  laid  down  the 
letter  and  said  (turning  toward  the  witness),  '  Who  told 
you  that  ? ' 

"  Pio^ott.    '  I  have  no  idea.' 

"  Russell  (striking  the  paper  energetically  with  his 
fingers).  '  But  that  refers,  among  other  things,  to  the 
incriminatory  letters.' 

''  PigotL    '  I  do  not  recollect  that  it  did.' 

'' Rtissell ["^xiX^.  energy).  'Do  you  swear  that  it  did  not,''' 

"■  Pigott.    '  I  will  not  swear  that  it  did  not.' 

"  Russell.    '  Do  you  think  it  did  ? ' 

''  Pigott.    '  No,  I  do  not  think  it  did.' 

"  Russell.  '  Do  you  think  that  these  letters,  if  genuine, 
would  prove  or  would  not  prove  Parnell's  complicity  in 
crime  ? ' 

"  Pigott.  '  I  thought  they  would  be  very  likely  to 
prove  it.' 

'■'■Russell.  '  Now,  reminding  you  of  that  opinion,  I  ask 
you  whether  you  did  not  intend  to  refer  —  not  solely,  I 
suggest,  but  among  other  things  —  to  the  letters  as  being 
the  matter  which  would  prove  complicity  or  purport  to 
prove  complicity } ' 

185 


THE   ART   OF    CROSS-EXAMINATION 

"  Pigott.    '  Yes,  I  may  have  had  that  in  my  mind.' 

"  Russell.  '  You  could  have  had  hardly  any  doubt  that 
you  had  ? ' 

"  Pigott.   '  I  suppose  so.' 

"  Russell.    '  You  suppose  you  may  have  had  ? ' 

''Pigott.   'Yes.' 

"  Russell.  '  There  is  the  letter  and  the  statement 
(reading),  "  Your  Grace  may  be  assured  that  I  speak  with 
full  knowledge,  and  am  in  a  position  to  prove,  beyond  all 
doubt  and  question,  the  truth  of  what  I  say."  Was  that 
true  ? ' 

"  Pigott.   '  It  could  hardly  be  true.' 

"  Russell.   '  Then  did  you  write  that  which  was  false .? ' 

"  Pigott.  '  I  suppose  it  was  in  order  to  give  strength 
to  what  I  said.  I  do  not  think  it  was  warranted  by  what 
I  knew.' 

"  Russell  '  You  added  the  untrue  statement  in  order 
to  add  strength  to  what  you  said .? ' 

''Pigott.    'Yes.' 

"  Russell.   '  You  believe  these  letters  to  be  genuine } ' 

"  Pigott.   '  I  do.' 

"  Russell    '  And  did  at  this  time } ' 

"Pigott.   'Yes.' 

"  Russell  (reading).  ' "  And  I  will  further  assure  your 
Grace  that  I  am  also  able  to  point  out  how  these  designs 
may  be  successfully  combated  and  finally  defeated."  How, 
if  these  documents  were  genuine  documents,  and  you  be- 
lieved them  to  be  such,  how  were  you  able  to  assure  his 

1 86 


CROSS-EXAMINATION    OF    RICHARD    PKiOTT 

Grace  that  y(ju  were  able  to  point  out  liow  the  design 
might  be  successfully  combated  and  finally  defeated  ? ' 

"  Pigott.  '  Well,  as  I  say,  I  had  not  the  letters  actually 
in  my  mind  at  that  time.  So  far  as  I  can  gather,  I  do 
not  recollect  the  letter  to  Archbishop  Walsh  at  all.  My 
memory  is  really  a  blank  on  the  circumstance.' 

"  Russell.  '  You  told  me  a  moment  ago,  after  great 
deliberation  and  consideration,  you  had  both  the  in- 
criminatory letters  and  the  letter  to  Archbishop  Walsh 
in  your  mind.' 

"  Pigott.  '  I  said  it  was  probable  I  did ;  but  I  say  the 
thing  has  completely  faded  out  of  my  mind.' 

"  Russell  (resolutely).  '  I  must  press  you.  Assuming 
the  letters  to  be  genuine,  what  were  the  means  by  which 
you  were  able  to  assure  his  Grace  that  you  could  point 
out  how  the  design  might  be  successfully  combated  and 
finally  defeated  ? ' 

"  Pigott  (helplessly).    '  I  cannot  conceive  really.' 

"  Russell.    '  Oh,  try.      You  must  reall)^  try.' 

"  Pigott  (in  manifest  confusion  and  distress).   '  I  cannot' 

"  Russell  (looking  fixedly  at  the  witness).    '  Tiy.' 

"  Pigott.    '  I  cannot.' 

''Russell    'Try.' 

*'  Pigott.   '  It  is  no  use.' 

"  Russell  (emphatically).  '  May  I  take  it,  then,  your 
answer  to  my  Lords  is  that  you  cannot  give  any  ex- 
planation ? ' 

"  Pigott.    '  I  really  cannot  absolutely.' 

187 


THE    ART    OF   CROSS-EXAMINATION 

"  Russell  (reading).  '  "  I  assure  your  Grace  that  I  have 
no  other  motive  except  to  respectfully  suggest  that  your 
Grace  would  communicate  the  substance  to  some  one 
or  other  of  the  parties  concerned,  to  whom  I  could  fur- 
nish details,  exhibit  proofs,  and  suggest  how  the  coming 
blow  may  be  effectually  met."  What  do  you  say  to 
that,  Mr.  Pigott?' 

"  Pigott.  '  I  have  nothing  to  say  except  that  I  do  not 
recollect  anything  about  it  absolutely.' 

"  Russell.    '  What  was  the  coming  blow .? ' 

"  Pigott.    '  I  suppose  the  coming  publication.' 

''  Rttssell.  '  How  was  it  to  be  effectively  met.f* ' 

"  Pis'ott.    '  I  have  not  the  sli2:htest  idea.' 

"  Russell.  '  Assuming  the  letters  to  be  genuine,  does 
it  not  even  now  occur  to  your  mind  how  it  could  be 
effectively  met .? ' 

''Pigott.    'No.' 

"  Pigott  now  looked  like  a  man,  after  the  sixth  round 
in  a  prize  fight,  who  had  been  knocked  down  in  every 
round.  But  Russell  showed  him  no  mercy.  I  shall 
take  another  extract. 


"  Russell.  '  Whatever  the  charges  in  "  Parnellism  and 
Crime,"  including  the  letters,  were,  did  you  believe  them 
to  be  true  or  not  ? ' 

"  Pigott.  '  How  can  I  say  that  when  I  say  I  do  not 
know  what  the  charges  were  ?     I  say  I  do  not  recollect 


CROSS-KXAMINA'IION    OK    RICHARD    PJGOI  T 

that  letter  to  the  archbishop  at  all,  or  any  of  the  circum- 
stances it  refers  to.' 

''Russell.  '  iMrst  of  all  you  knew  this:  that  you  pro- 
cured and  paid  for  a  number  of  letters?  ' 

''PicroiL    'Yes.' 

"■Russell.  'Which,  if  genuine,  you  have  already  told 
me,  would  gravely  implicate  the  parties  from  whom  these 
were  supposed  to  come. ' 

''  Pigott.   '  Yes,  gravely  implicate.' 

"  Russell.  '  You  would  regard  that,  I  suppose,  as  a 
serious  charge  1 ' 

'' Pio-otl.    'Yes.' 

"  Russell.  '  Did  you  believe  that  charge  to  be  true  or 
false  .? ' 

"  Pigott.    '  I  believed  that  charge  to  be  true.' 

"  Russell.    '  You  believed  that  to  be  true  } ' 

"  Pigott.    '  I  do.' 

"  Russell  '  Now  I  will  read  this  passage  [from  Pigott's 
letter  to  the  archbishop],  "  I  need  hardly  add  that,  did 
I  consider  the  parties  really  guilty  of  the  things  charged 
against  them,  I  should  not  dream  of  suggesting  that 
3^our  Grace  should  take  part  in  an  effort  to  shield  them  ; 
I  only  wish  to  impress  on  your  Grace  that  the  evi- 
dence is  apparently  convincing,  and  would  probably 
be  sufficient  to  secure  conviction  if  submitted  to 
an  English  jury."  What  do  you  say  to  that,  Mr. 
Pigott .? ' 

"  Pigott  (bewildered).    '  I  say  nothing,  except  that  I  am 

189 


THE   ART    OF   CROSS-EXAMINATION 

sure  I  could  not  have  had  the  letters  in  my  mind  when  I 
said  that,  because  I  do  not  think  the  letters  conveyed  a 
sufficiently  serious  charge  to  cause  me  to  write  in  that 
way.' 

"  Russell.  '  But  you  know  that  was  the  only  part  of 
the  charge,  so  far  as  you  have  yet  told  us,  that  you  had 
anything  to  do  in  getting  up  ? ' 

"  Pigott.  '  Yes,  that  is  what  I  say ;  I  must  have  had 
something  else  in  my  mind  which  I  cannot  at  present 
recollect  —  that  I  must  have  had  other  charges.' 

"  Russell.    '  What  charges  ? ' 

"  Pigott.  '  I  do  not  know.  That  is  what  I  cannot  tell 
you.' 

"  Russell.  '  Well,  let  me  remind  you  that  that  particu- 
lar part  of  the  charges  —  the  incriminatory  letters  — 
were  letters  that  you  yourself  knew  all  about.' 

^'Pigott.    'Yes,  of  course.' 

''Russell  (reading  from  another  letter  of  Pigott's  to 
the  archbishop).  ' "  I  was  somewhat  disappointed  in  not 
having  a  line  from  your  Grace,  as  I  ventured  to  expect 
I  might  have  been  so  far  honored.  I  can  assure  your 
Grace  that  I  have  no  other  motive  in  writing  save  to 
avert,  if  possible,  a  great  danger  to  people  with  whom 
your  Grace  is  known  to  be  in  strong  sympathy.  At  the 
same  time,  should  your  Grace  not  desire  to  interfere  in 
the  matter,  or  should  you  consider  that  they  would  refuse 
me  a  hearing,  I  am  well  content,  having  acquitted  myself 
of  what  I  conceived  to  be  my  duty  in  the  circumstances. 

190 


CROSS-EXAMINATION    OF    RICHARD    PIGO  I  T 

I  will  not  further  trouble  your  Grace  save  to  again  beg 
that  you  will  not  allow  my  name  to  transpire,  seeing  that 
to  do  so  would  interfere  injuriously  with  my  prospects, 
without  any  compensating  advantage  to  any  one.  I 
make  the  request  all  the  more  confidently  because  I  have 
had  no  part  in  what  is  being  done  to  the  prejudice  of 
the  Parnellite  party,  though  I  was  enabled  to  become 
acquainted  with  all  the  details."  ' 

"  Pigott  (with  a  look  of  confusion  and  alarm).    '  Yes.' 

"  Russell.    '  Wliat  do  you  say  to  that  ?  ' 

""Pigott.  'That  it  appears  to  me  clearly  that  I  had 
not  the  letters  in  my  mind.' 

"  Russell.  '  Then  if  it  appears  to  you  clearly  that  you 
had  not  the  letters  in  your  mind,  what  had  you  in  your 
mind  ? ' 

''Pigott.  'It  must  have  been  something  far  more 
serious.' 

"  Rtissell.    '  What  was  it  ? ' 

"  Pigott  (helplessly,  great  beads  of  perspiration  stand- 
ing out  on  his  forehead  and  trickling  down  his  face).  '  I 
cannot  tell  you.     I  have  no  idea.' 

"  Russell.  '  It  must  have  been  something  far  more 
serious  than  the  letters } ' 

"  Pigott  (vacantly).    '  Far  more  serious.' 

"  Russell  (briskly).  '  Can  you  give  my  Lords  any  clew 
of  the  most  indirect  kind  to  what  it  was  } ' 

"  Pigott  (in  despair).    '  I  cannot.' 

"  Russell.   '  Or  from  whom  you  heard  it } ' 

191 


THE   ART    OF    CROSS-EXAMIMATION 

"  Pigott.   '  No.' 

"  Russell.   '  Or  when  you  heard  it? ' 

"  Pigott.    '  Or  when  I  heard  it.' 

"  Russell.    '  Or  where  you  heard  it  t ' 

"  Picrott.    '  Or  where  I  heard  it' 

"  Russell  '  Have  you  ever  mentioned  this  fearful  mat- 
ter —  whatever  it  is  —  to  anybody  } ' 

"  Pigott.    '  No.' 

"  Russell.  '  Still  locked  up,  hermetically  sealed  in  your 
own  bosom } ' 

"  Pigott.  '  No,  because  it  has  gone  away  out  of  my 
bosom,  whatever  it  was.' 

"  On  receiving  this  answer  Russell  smiled,  looked  at 
the  bench,  and  sat  down.  A  ripple  of  derisive  laughter 
broke  over  the  court,  and  a  buzz  of  many  voices  followed. 
The  people  standing  around  me  looked  at  each  other 
and  said,  '  Splendid.'  The  judges  rose,  the  great  crowd 
melted  away,  and  an  Irishman  who  mingled  in  the 
throng  expressed,  I  think,  the  general  sentiment  in  a 
single  word, '  Smashed.'  " 

Pigott's  cross-examination  was  finished  the  following 
day,  and  the  second  day  he  disappeared  entirely,  and 
later  sent  back  from  Paris  a  confession  of  his  guilt, 
admitting  his  perjury,  and  giving  the  details  of  how  he 
had  forged  the  alleged  Parnell  letter  by  tracing  words 
and  phrases  from  genuine  Parnell  letters,  placed  against 
the  window-pane,  and  admitting  that  he  had  sold  the 
forged  letter  for  ^605. 

192 


CROSS-KXAMINMION    OV    RICHARD    PIGO 1" T 

After  the  confession  was  read,  the  Commission  "  found  " 
that  it  was  a  forgery,  and  the  limes  withdrew  the 
facsimile  letter. 

A  warrant  was  issued  for  Pigott's  arrest  on  the  charge 
of  perjury,  but  when  he  was  tracked  by  the  police  to  a 
hotel  in  Madrid,  he  asked  to  be  given  time  enough  to 
collect  his  belongings,  and,  retiring  to  his  room,  blew  out 
his  brains. 


193 


CHAPTER   XII 

THE    CROSS-EXAMINATION    OF    DR.   IN    THE    CARLYLE 

W.   HARRIS   CASE 


CHAPTER    XII 

THE   CROSS-EXAMINATION   OF   DR.  IN   THE  CARLYLE  W. 

HARRIS    CASE 

The  records  of  the  criminal  courts  in  this  country 
contain  few  cases  that  have  excited  so  much  human  in- 
terest among  all  classes  of  the  community  as  the  prose- 
cution and  conviction  of  Carlyle  W.  Harris. 

Even  to  this  day  —  ten  years  after  the  trial  —  there  is 
a  widespread  belief  among  men,  perhaps  more  especially 
among  women,  who  did  not  attend  the  trial,  but  simply 
listened  to  the  current  gossip  of  the  day  and  followed 
the  newspaper  accounts  of  the  court  proceedings,  that 
Harris  was'  innocent  of  the  crime  for  the  commission  of 
which  his  life  was  forfeited  to  the  state. 

It  is  proposed  in  this  chapter  to  discuss  some  of  the 
facts  that  led  up  to  the  testimony  of  one  of  the  most  distin- 
guished toxicologists  in  the  country,  who  was  called  for 
the  defence  on  the  crucial  point  in  the  case ;  and  to  give 
extracts  from  his  cross-examination,  his  failure  to  with- 
stand which  was  the  turning-point  in  the  entire  trial. 
He  returned  to  his  home  in  Philadelphia  after  he  left  the 
witness-stand,  and  openly  declared  in  public,  when  asked 

197 


THE    ART   OF   CROSS-EXAMINATION 

to  describe  his  experiences  in  New  York,  that  he  had 
"  gone  to  New  York  only  to  make  a  fool  of  himself  and 
return  home  again." 

It  is  also  proposed  to  give  some  of  the  inside  history 
of  the  case  —  facts  that  never  came  out  at  the  trial,  not 
because  they  were  unknown  at  the  time  to  the  district 
attorney,  nor  unsusceptible  of  proof,  but  because  the 
strict  rules  of  evidence  in  such  cases  often,  as  it  seems 
to  the  writer,  withhold  from  the  ears  of  the  jury  certain 
facts,  the  mere  recital  of  which  seems  to  conclude  the 
question  of  guilt.  For  example,  the  rule  forbidding  the 
presentation  to  the  jury  of  anything  that  was  said  by 
the  victim  of  a  homicide,  even  to  witnesses  surrounding 
the  death-bed,  unless  the  victim  in  express  teiTns  makes 
known  his  own  belief  that  he  cannot  live,  and  that  he  has 
abandoned  all  hope  or  expectation  of  recovery  before  he 
tells  the  tale  of  the  manner  in  which  he  was  slain,  or  the 
causes  that  led  up  to  it,  has  allowed  many  a  guilty 
prisoner,  if  not  to  escape  entirely,  at  least  to  avoid  the 
full  penalty  for  the  crime  he  had  undoubtedly  committed. 

Carlyle  Harris  was  a  gentleman's  son,  with  all  the 
advantages  of  education  and  breeding.  In  his  twenty- 
second  year,  and  just  after  graduating  with  honors  from 
the  College  of  Physicians  and  Surgeons  in  New  York 
City,  he  was  indicted  and  tried  for  the  murder  of  Miss 
Helen  Potts,  a  young,  pretty,  intelligent,  and  talented 
school  girl  in  attendance  at  Miss  Day's  Ladies'  Boarding 
School,  on  40th  Street.  New  York  City. 

198 


THE    CROSS-EXAMINATION    OF    DR. 


Harris  had  niade  the  acquaintance  of  Miss  Potts  in 
the  summer  of  1889,  and  all  during  the  winter  paid 
marked  attention  to  her.  The  following  spring,  while 
visiting  her  uncle,  who  was  a  doctor,  she  was  delivered 
of  a  four  months'  child,  and  was  obliged  to  confess  to 
her  mother  that  she  was  secretly  married  to  Harris  under 
assumed  names,  and  that  her  student  husband  had  him- 
self performed  an  abortion  upon  her. 

Harris  was  sent  for.  He  acknowledged  the  truth  of 
his  wife's  statements,  but  refused  to  make  the  marriage 
public.  From  this  time  on,  till  the  day  of  her  daughter's 
death,  the  wretched  mother  made  every  effort  to  induce 
Harris  to  acknowledge  his  wife  publicly.  She  finally 
wrote  him  on  the  20th  of  January,  1891,  "You  must  go 
on  the  8th  of  February,  the  anniversary  of  your  secret 
marriage,  before  a  minister  of  the  gospel,  and  there  have 
a  Christian  marriage  performed  —  no  other  course  than 
this  will  any  longer  be  satisfactory  to  me  or  keep  me  quiet." 

That  very  day  Harris  ordered  at  an  apothecary  store 
six  capsules,  each  containing  4J  grains  of  quinine  and 
J-  of  a  grain  of  morphine,  and  had  the  box  marked : 
"  C.  W.  H.  Student.  One  before  retiring."  Miss  Potts 
had  been  complaining  of  sick  headaches,  and  Harris 
gave  her  four  of  these  capsules  as  an  ostensible  remedy. 
He  then  wrote  to  Mrs.  Potts  that  he  would  asfree  to  her 
terms  "  unless  some  other  way  could  be  found  of  satisfy- 
ing her  scruples,"  and  went  hurriedly  to  Old  Point  Com- 
fort.    Upon  hearing   from   his  wife    that    the   capsules 

IQQ 


THE   ART   OF    CROSS-EXAMINATION 

made  her  worse  instead  of  better,  he  still  persuaded  her 
to  continue  taking  them.  On  the  day  of  her  death  she 
complained  to  her  mother  about  the  medicine  Carlyle 
had  given  her,  and  threatened  to  throw  the  box  with  the 
remaining  capsule  out  of  the  window.  Her  mother  per- 
suaded her  to  try  this  last  one,  which  she  promised  to  do. 
Miss  Potts  slept  in  a  room  with  three  classmates  who, 
on  this  particular  night,  had  gone  to  a  symphony  concert. 
Upon  their  return  they  found  Helen  asleep,  but  woke 
her  up  and  learned  from  her  that  she  had  been  having 
"  such  beautiful  dreams,"  she  "  had  been  dreaming  of 
Carl."  Then  she  complained  of  feeling  numb,  and 
becoming  frightened,  begged  the  girls  not  to  let  her  go 
to  sleep.  She  repeated  that  she  had  taken  the  medicine 
Harris  had  given  her,  and  asked  them  if  they  thought  it 
possible  that  he  would  give  her  anything  to  harm  her. 
She  soon  fell  into  a  profound  coma,  breathing  only  twice 
to  the  minute.  The  doctors  worked  over  her  for  eleven 
hours  without  restoring  her  to  consciousness,  when  she 
stopped  breathing  entirely. 

The  autopsy,  fifty-six  days  afterward,  disclosed  an 
apparently  healthy  body,  and  the  chemical  analysis  of 
the  contents  of  the  stomach  disclosed  the  presence  of 
morphine  but  7iot  of  quinine,  though  the  capsules  as 
originally  compounded  by  the  druggist  contained  twenty- 
seven  times  as  much  quinine  as  morphine. 

This  astounding  discovery  led  to  the  theory  of  the 
prosecution:   that   Harris  had  emptied  the  contents  of 

200 


THE    CROSS-EXAMINATION   OF    DR. 


one  of  the  capsules,  had  substituted  morphine  in  suffi- 
cient quantities  to  kill,  in  place  o/ the  4J-  grains  of  qui- 
nine (to  the  eye,  powdered  quinine  and  morphine  arc 
identical),  and  had  placed  this  fatal  capsule  in  the  box 
with  the  other  three  harmless  ones,  one  to  be  taken  each 
night.  He  had  then  fled  from  the  city,  not  knowing 
which  day  would  brand  him  a  murderer. 

Immediately  after  his  wife's  death  Harris  went  to  one 
of  his  medical  friends  and  said :  "  I  only  gave  her  four 
capsules  of  the  six  I  had  made  up ;  l/ie  two  I  kept  out 
will  show  that  they  are  perfectly  harmless.  No  jury  can 
convict  me  with  those  in  ■)ny  possession  ;  they  can  be  ana- 
lyzed and  proved  to  be  harmlessr 

They  were  analyzed  and  it  was  proved  that  the  pre- 
scription had  been  correctly  compounded.  But  often- 
times the  means  a  criminal  uses  in  order  to  conceal  his 
deed  are  the  very  means  that  Providence  employs  to 
reveal  the  sin  that  lies  hidden  in  his  soul.  Harris  failed 
to  foresee  that  it  was  the  preservation  of  these  capsules 
that  would  really  convict  him.  Miss  Potts  had  taken 
all  that  he  had  given  her,  and  no  one  could  ever  have 
been  certain  that  it  was  not  the  druggist's  awful  mistake, 
had  not  these  retained  capsules  been  analyzed.  When 
Harris  emptied  one  capsule  and  reloaded  it  with  mor- 
phine, he  had  himself  become  the  druggist. 

It  was  contended  that  Harris  never  intended  to  recog- 
nize Helen  Potts  as  his  wife.  He  married  her  in  secret, 
it  appeared  at  the  trial,  —  as  it  were  from  his  own  lips 

201 


THE   ART    OF    CROSS-EXAMINATION 

through  the  medium  of  conversation  with  a  friend, — 
"because  he  could  not  accomplish  her  ruin  in  any 
other  way."  He  brought  her  to  New  York,  was  mar- 
ried to  her  before  an  alderman  under  assumed  names, 
and  then  having  accomplished  his  purpose,  burned  the 
evidence  of  their  marriage,  the  false  certificate.  Finally, 
when  the  day  was  set  upon  which  he  must  acknowledge 
her  as  his  wife,  he  planned  her  death. 

The  late  recorder,  Frederick  Smyth,  presided  at  the 
trial  with  great  dignity  and  fairness.  The  prisoner  was 
ably  represented  by  John  A.  Taylor,  Esq.,  and  William 
Travers  Jerome,  Esq.,  the  present  district  attorney  of 
New  York. 

Mr.  Jerome's  cross-examination  of  Professor  Witthaus, 
the  leading  chemist  for  the  prosecution,  was  an  ex- 
tremely able  piece  of  work,  and  during  its  eight  hours 
disclosed  an  amount  of  technical  information  and  re- 
search such  as  is  seldom  seen  in  our  courts.  Had  it 
not  been  for  the  witness's  impregnable  position,  he  cer- 
tainly would  have  succumbed  before  the  attack.  The 
length  and  technicality  of  the  examination  render  its  use 
impracticable  in  this  connection ;  but  it  is  recommended 
to  all  students  of  cross-examination  who  find  themselves 
confronted  with  the  task  of  examination  in  so  remote  a 
branch  of  the  advocate's  equipment  as  a  knowledge  of 
chemistry. 

The  defence  consisted  entirely  of  medical  testimony, 
directed  toward  creating  a  doubt  as  to  our  theory  that 

202 


THE    CROSS-EXAM  IN A'I'ION    OF    DR. 


morphine  was  the  cause  of  death.  Their  cross-exami- 
nation of  our  witnesses  was  suggestive  of  deatli  from 
natural  causes :  from  heart  disease,  a  brain  tumor,  apo- 
plexy, epilepsy,  uremia.  In  fact,  the  multiplicity  of  their 
defences  was  a  great  weakness.  Gradually  they  were 
forced  to  abandon  all  but  two  possible  causes  of  death, 
—  that  by  morphine  poisoning  and  that  by  uremic  poi- 
soning. This  narrowed  the  issue  down  to  the  question, 
Was  it  a  large  dose  of  morphine  that  caused  death,  or 
was  it  a  latent  kidney  disease  that  was  superinduced 
and  brought  to  light  in  the  form  of  uremic  coma  by 
small  doses  of  morphine,  such  as  the  one-sixth  of  a  grain 
admittedly  contained  in  the  capsules  Harris  admin- 
istered? In  one  case  Harris  was  guilty;  in  the  other 
he  was  innocent. 

Helen  Potts  died  in  a  profound  coma.  Was  it  the 
coma  of  morphine,  or  that  of  kidney  disease  ?  Many  of 
the  leading  authorities  in  this  city  had  given  their  con- 
victions in  favor  of  the  morphine  theory.  In  reply  to 
those,  the  defence  was  able  to  call  a  number  of  young 
doctors,  who  have  since  made  famous  names  for  them- 
selves, but  who  at  the  time  were  almost  useless  as 
witnesses  with  the  jury  because  of  their  comparative 
inexperience.  Mr.  Jerome  had,  however,  secured  the 
services  of  one  physician  who,  of  all  the  others  in  the 
country,  had  perhaps  apparently  best  qualified  himself 
by  his  writings  and  thirty  years  of  hospital  experience  to 
speak  authoritatively  upon  the  subject. 

20^ 


THE   ART    OF    CROSS-EXAMINATION 

Misdirect  testimony  was  to  the  effect  that  —  basing 
his  opinion  partly  upon  wide  reading  of  the  Hterature  of 
the  subject,  and  what  seemed  to  him  to  be  the  general 
consensus  of  professional  opinion  about  it,  and  "  very 
largely  on  his  own  experience'" — no  living  doctor  can  dis- 
tinguish the  coma  of  morphine  from  that  of  kidney  dis- 
ease ;  and  as  the  theory  of  the  criminal  law  is  that,  if  the 
death  can  be  equally  as  well  attributed  to  natural  causes 
as  to  the  use  of  poison,  the  jury  would  be  bound  to  give 
the  prisoner  the  benefit  of  the  doubt  and  acquit  him. 

It  was  the  turning-point  in  the  trial.  If  any  of  the 
jurors  credited  this  testimony,  —  the  witness  gave  the 
reasons  for  his  opinion  in  a  very  quiet,  conscientious, 
and  impressive  manner,  —  there  certainly  could  be  no 
conviction  in  the  case,  nothing  better  than  a  disagree- 
ment of  the  jury.  It  was  certain  Harris  had  given  the 
capsules,  but  unless  his  wife  had  died  of  morphine  poi- 
soning, he  was  innocent  of  her  death. 

The  cross-examination  that  follows  is  much  abbreviated 
and  given  partly  from  memory.  It  was  apparent  that  the 
witness  would  withstand  any  amount  of  technical  exami- 
nation and  easily  get  the  better  of  the  cross-examiner  if 
such  matters  were  gone  into.  He  had  made  a  profound 
impression.  The  court  had  listened  to  him  with  breath- 
less interest.  He  must  be  dealt  with  gently  and,  if 
possible,  led  into  self-contradictions  where  he  was  least 
prepared  for  them. 

The  cross-examiner  sparred  for  an  opening  with  the 

204 


THE    CROSS-KXAiMINATlON    OF    DR. 


determination  to  strike  quickly  and  to  sit  down  if  he  got 
in  one  telling  blow.  The  first  one  missed  aim  a  little, 
but  the  second  brought  a  peal  of  laughter  from  the  jury 
and  the  audience,  and  the  witness  retired  in  great  con- 
fusion. Even  the  lawyers  for  the  defence  seemed  to  lose 
heart,  and  although  two  hours  before  time  of  adjourn- 
ment, begged  the  court  for  a  recess  till  the  following 
day. 

Counsel  (quietly).  "  Do  you  wish  the  jury  to  under- 
stand, doctor,  that  Miss  Helen  Potts  did  not  die  of 
morphine  poisoning.?  " 

Wibiess.    "I  do  not  swear  to  that." 
Counsel.    "  What  did  she  die  of }  " 
Witness.    "  I  don't  swear  what  she  died  of." 
Cou7isel.    "  I  understood  you  to  say  that  in  your  opin- 
ion the  symptoms  of   morphine  could  not  be  sworn  to 
with  positiveness.     Is  that  correct  ?  " 

Witness.    "  I  don't  think  they  can,  with  positiveness." 

Counsel.   "  Do   you  wish    to  go   out  to  the  world  as 

saying  that  you  have  never  diagnosed  a  case  of  morphine 

poisoning  excepting  when  you  had  an  autopsy  to  exclude 

kidney  disease } " 

Witness.    "  I  do  not.     I  have  not  said  so." 
Counsel.    "  Then  you    have  diagnosed   a  case  on  the 
symptoms    alone,    yes  "^    or    no }     I    want    a    categorical 
answer." 

Witness  (sparring).  "  I  would  refuse  to  answer  that 
question   categorically ;    the  word  '  diagnosed '    is    used 

205 


THE   ART   OF    CROSS-EXAMINATION 

with  two  different  meanings.  One  has  to  make  what  is 
known  as  a  '  working  diagnosis '  when  he  is  called  to  a 
case,  not  a  positive  diagnosis." 

Counsel.  "  When  was  your  last  case  of  opium  or  mor- 
phine poisoning .? " 

Wihiess.    "  I  can't  remember  which  was  the  last." 

Counsel  (seeing  an  opening).  "  I  don't  want  the  name 
of  the  patient.  Give  me  the  date  approximately,  that  is, 
the  year  —  but  under  oath." 

Witness.    "  I  think  the  last  was  some  years  ago." 

Counsel.    "  How  many  years  ago }  " 

Witness  (hesitating),  "It  may  be  eight  or  ten  years 
ago." 

Counsel.  "  Was  it  a  case  of  death  from  morphine 
poisoning  ? " 

Witness.    "  Yes,  sir." 

Counsel.    "  Was  there  an  autopsy }  " 

Witness.    "  No,  sir." 

Counsel.  "  How  did  you  know  it  was  a  death  from 
morphine,  if,  as  you  said  before,  such  symptoms  cannot 
be  distinguished  ? " 

Witness.  "  I  found  out  from  a  druggist  that  the  woman 
had  taken  seven  grains  of  morphine." 

Counsel.  "  You  made  no  diagnosis  at  all  until  you 
heard  from  the  druggist .? " 

Witness.    "  I  began  to  give  artificial  respiration." 

Counsel  "  But  that  is  just  what  you  would  do  in  a 
case  of  morphine  poisoning  ? " 

206 


THE    CROSS-EXAMINATION    OF    DR. 


Witness  (hesitating).  "  Yes,  sir.  I  made,  of  course,  a 
working  diagnosis." 

Counsel.  "  Do  you  remember  the  case  you  had  before 
that.?" 

Witness.    "  I  remember  another  case." 

Counsel.    "  When   was   that .?  " 

Witness.  "  It  was  a  still  longer  time  ago.  I  don't 
know  the  date»" 

Counsel    "  How  many  years  ago,  on  your  oath .? " 

Witness.    "  Fifteen,  probably." 

Counsel.    "  Any  others  }  " 

Witness.   "  Yes,  one  other." 

Counsel.    "  When  }  " 

Witness.    "  Twenty  years  ago." 

Counsel  "  Are  these  three  cases  all  you  can  remember 
in  your  experience  .?  " 

Witness.    "  Yes,  sir." 

Counsel  (chancing  it).  "  Were  more  than  one  of  them 
deaths  from  morphine }  " 

Wit7iess.    "  No,  sir,  only  one." 

C^?^7^W  (looking  at  the  jury  somewhat  triumphantly). 
"  Then  it  all  comes  down  to  this :  you  have  had  the 
experience  of  one  case  of  morphine  poisoning  in  the 
last  twenty  years  1 " 

Witness  (in  a  low  voice).  "  Yes,  sir,  one  that  I  can 
remember." 

Counsel  (excitedly).  "And  are  you  willing  to  come 
here  from  Philadelphia,  and  state  that   the  New  York 

207 


THE    ART    OF    CROSS-EXAMINATION 

doctors  who  have  ah'eady  testified  against  you,  and  who 
swore  they  had  had  seventy-five  similar  cases  in  their 
own  practice,  are  mistaken  in  their  diagnoses  and 
conclusions  ? " 

Wit7iess  (embarrassed  and  in  a  low  tone).  "  Yes,  sir, 
I  am." 

Counsel.  "  You  never  heard  of  Helen  Potts  until  a 
year  after  her  death,   did  you  ?  " 

Witness.    "  No,  sir." 

Counsel.  "  You  heard  these  New  York  physicians  say 
that  they  attended  her  and  observed  her  symptoms  for 
eleven  hours  before  death .? " 

Witness.    "  Yes,  sir." 

Counsel.  "  Are  you  willing  to  go  on  record,  with  your 
one  experience  in  twenty  years,  as  coming  here  and 
saying  that  you  do  not  believe  our  doctors  can  tell 
morphine  poisoning  when  they  see  \\.V 

Witness  (sheepishly).    "  Yes,  sir." 

Counsel.  "  You  have  stated,  have  you  not,  that  the 
symptoms  of  morphine  poisoning  cannot  be  told  with 
positiveness  ? " 

Witness.    "  Yes,  sir." 

Cotinsel.  "  You  said  you  based  that  opinion  upon 
your  own  experience,  and  it  now  turns  out  you  have 
seen  but  one  case  in  twenty  years." 

Witness.    "  I  also  base  it  upon  my  reading." 

Counsel  (becoming  almost  contemptuous  in  manner). 
"  Is  your  reading  confined  to  your  own  book  ? " 

208 


THE    CROSS-KXAMINATION    OV    DR. 


Wtt7tess  (excitedly).    "  No,  sir;  I  say  no." 

Counsel  (calmly).  "  But  I  jjresume  you  embodied  in 
your  own  book  the  results  of  your  reading,  did  you 
not.?" 

Witfiess  (a  little  apprehensively).    "  I  tried  to,  sir." 

It  must  be  explained  here  that  the  attending  physi- 
cians had  said  that  "the  pupils  of  the  eyes  of  Helen 
Potts  were  contracted  to  a  pin-point,  so  much  so  as 
to  be  practically  unrecognizable,  and  symmetrically 
contracted  —  that  this  symptom  was  the  one  invariably 
present  in  coma  from  morphine  poisoning,  and  dis- 
tingruished  it  from  all  other  forms  of  death,  whereas 
in  the  coma  of  kidney  disease  one  pupil  would  be 
dilated  and  the  other  contracted ;  they  would  be  un- 
symmetrical. 

Counsel  (continuing).  "  Allow  me  to  read  to  you  from 
your  own  book  on  page  i66,  where  you  say  (reading), 
'  I  have  thought  that  inequality  of  the  pupils '  —  that  is, 
where  they  are  not  symmetrically  contracted  — '  is  proof 
that  a  case  is  not  one  of  narcotism  '  —  or  moiphine  poi- 
soning — '  but  Professor  Taylor  has  recorded  a  case  of 
morphine  poisoning  in  which  //[the  unsymmetrical  con- 
traction of  the  pupils]  occurred'  Do  I  read  it  as  you 
intended  it  ? " 

Witness.    "Yes,  sir." 

Counsel.  "  So  uiitilyou  heard  of  the  case  that  Professor 
Taylor  reported,  you  had  always  supposed  symmetri- 
cal contraction  of  the  pupils  of  the  eyes  to  be  the  distiti- 
o  209 


THE   ART    OF    CROSS-EXAMINATION 

guishiiig  sy77iptom  of  morphhte  poiso7ii7ig,  and  it  is  on 
this  that  you  base  your  stateme^it  that  the  New  York  doc- 
tors could  not  tell  morphine  poisoning  positively  when 
they  see  it  ?  " 

Witness  (little  realizing  the  point).    "Yes,  sir." 
Counsel  (very  loudly).  "  Well,  sir,  did  you  investigate 
that  case  far  enough  to  discover  that  Professor  Taylor  s 
patient  had  one  glass  eye  ?  "  ^ 

Witness  (in  confusion).    "  I  have  no  memory  of  it." 
Counsel.    "  That  has  been  proved  to  be  the  case  here. 
You  would  better  go  back  to  Philadelphia,  sir." 

There  were  roars  of  laughter  throughout  the  audience 
as  counsel  resumed  his  seat  and  the  witness  walked  out 
of  the  court  room.  It  is  difficult  to  reproduce  in  print 
the  effect  made  by  this  occurrence,  but  with  the  retire- 
ment of  this  witness  the  defendant's  case  suffered  a 
collapse  from  which  it  never  recovered. 

It  is  interesting  to  note  that  within  a  year  of  Harris's 
conviction,  Dr.  Buchanan  was  indicted  and  tried  for  a 
similar  offence  —  wife  poisoning  by  the  use  of  morphine. 

It  appeared  in  evidence  at  Dr.  Buchanan's  trial  that, 
during  the  Harris  trial  and  the  examination  of  the  medi- 
cal witnesses,  presumably  the  witness  whose  examination 
has  been  given  above,  Buchanan  had  said  to  his  mess- 

^  The  reports  of  six  thousaad  cases  of  morphine  poisoning  had  been  ex- 
amined by  the  prosecution  in  this  case  before  trial,  and  among  them  the  case 
reported  by  Professor  Taylor. 

2IO 


THE    CROSS-EXAMINATION    OF    DR. 


mates  that  "  Harris  was  a fool,  he  didn't  know  how 

to  mix  his  drugs.  If  he  had  put  a  little  atropine  with  his 
morphine,  it  would  have  dilated  the  pupil  of  at  least  one 
of  his  victim's  eyes,  and  no  doctor  could  have  deposed  to 
death  by  morphine." 

When  Buchanan's  case  came  up  for  trial  it  was  dis- 
covered that,  although  morphine  had  been  found  in  the 
stomach,  blood,  and  intestines  of  his  wife's  body,  the  pupils 
of  the  eyes  were  not  symmetrically  contracted.  No  posi- 
tive diagnosis  of  her  case  could  be  made  by  the  attending 
physicians  until  the  continued  chemical  examination  of 
the  contents  of  the  body  disclosed  indisputable  evidence 
of  atropine  (belladonna).  Buchanan  had  profited  by  the 
disclosures  in  the  Harris  trial,  but  had  made  the  fatal 
mistake  of  telling  his  friends  how  it  could  have  been 
done  in  order  to  cheat  science.  It  was  this  statement  of 
his  that  put  the  chemists  on  their  guard,  and  resulted  in 
Buchanan's  conviction  and  subsequent  execution. 

Carlyle  Harris  maintained  his  innocence  even  after  the 
Court  of  Appeals  had  unanimously  sustained  his  convic- 
tion, and  even  as  he  calmly  took  his  seat  in  the  electric 
chair. 

The  most  famous  English  poison  case  comparable  to 
the  Harris  and  Buchanan  cases  was  that  of  the  celebrated 
William  Palmer,  also  a  physician  by  profession,  who  poi- 
soned his  companion  by  the  use  of  strychnine  in  order 
to  obtain  his  money  and  collect  his  racing  bets.  The 
trial  is  referred  to  in  detail  in  another  chapter. 

211 


THE   ART    OF   CROSS-EXAMINATION 

Palmer,  like  Harris  and  Buchanan,  maintained  a  stoical 
demeanor  throughout  his  trial  and  confinement  in  jail, 
awaiting  execution.  The  morning  of  his  execution  he 
ate  his  eggs  at  breakfast  as  if  he  were  going  on  a  journey. 
When  he  was  led  to  the  gallows,  it  was  demanded  of  him 
in  the  name  of  God,  as  was  the  custom  in  England  in 
those  days,  if  he  was  innocent  or  guilty.  He  made  no 
reply.  Again  the  question  was  put,  "  William  Palmer,  in 
the  name  of  Almighty  God,  are  you  innocent  or  guilty.?" 
Just  as  the  white  cap  came  over  his  face  he  murmured  in 
a  low  breath,  "  Guilty,"  and  the  bolts  were  drawn  with  a 
crash. 


212 


CHAPTER   XIII 


THE   BELLEVUE   HOSPITAL   CASE 


CHAPTER   XIII 

THE    BELLEVUE    HOSPITAL    CASE 

On  December  15,  1900,  there  appeared  in  the  New 
York  World  an  article  written  by  Thomas  J.  Minnock,  a 
newspaper  reporter,  in  which  he  claimed  to  have  been  an 
eye-witness  to  the  shocking  brutality  of  certain  nurses  in 
attendance  at  the  Insane  Pavilion  of-  Bellevue  Hospital, 
which  resulted  in  the  death,  by  strangulation,  of  one  of 
its  inmates,  a  Frenchman  named  Hilliard.  This  French- 
man had  arrived  at  the  hospital  at  about  four  o'clock  in 
the  afternoon  of  Tuesday,  December  11.  He  was  suffer- 
ing from  alcoholic  mania,  but  was  apparently  otherwise 
in  normal  physical  condition.  Twenty-six  hours  later, 
or  on  Wednesday,  December  12,  he  died.  An  autopsy 
was  performed  which  disclosed  several  bruises  on  the 
forehead,  arm,  hand,  and  shoulder,  three  broken  ribs  and 
a  broken  hyoid  bone  in  the  neck  (which  supports  the 
tongue),  and  a  suffusion  of  blood  or  haemorrhage  on  both 
sides  of  the  windpipe.  The  coroner's  physician  reported 
the  cause  of  death,  as  shown  by  the  autopsy,  to  be  stran- 
gulation. The  newspaper  reporter,  Minnock,  claimed  to 
have  been  in  Bellevue  at  the  time,  feigning  insanity  for 
newspaper  purposes ;  and  upon  his  discharge  from  the 

215 


THE    ART   OF   CROSS-EXAMINATION 

hospital  he  stated  that  he  had  seen  the  Frenchman  stran- 
gled to  death  by  the  nurses  in  charge  of  the  Pavilion  by 
the  use  of  a  sheet  tightly  twisted  around  the  insane  man's 
neck.  The  language  used  in  the  newspaper  articles  writ- 
ten by  Minnock  to  describe  the  occurrences  preceding  the 
Frenchman's  death  was  as  follows  :  — 

"  At  supper  time  on  Wednesday  evening,  when  the 
Frenchman,  Mr,  Hilliard,  refused  to  eat  his  supper,  the 
nurse,  Davis,  started  for  him.  Hilliard  ran  around 
the  table,  and  the  other  two  nurses,  Dean  and  Marshall, 
headed  him  off  and  held  him ;  they  forced  him  down  on 
a  bench,  Davis  called  for  a  sheet,  one  of  the  other  two, 
I  do  not  remember  which,  brought  it,  and  Davis  drew 
it  around  Hilliard's  neck  like  a  rope.  Dean  was  behind 
the  bench  on  which  Hilliard  had  been  pulled  back ;  he 
gathered  up  the  loose  ends  of  the  sheet  and  pulled  the 
linen  tight  around  Hilliard's  neck,  then  he  began  to 
twist  the  folds  in  his  hand.  I  was  horrified.  I  have 
read  of  the  garrote ;  I  have  seen  pictures  of  how  persons 
are  executed  in  Spanish  countries ;  I  realized  that  here, 
before  my  eyes,  a  strangle  was  going  to  be  performed. 
Davis  twisted  the  ends  of  the  sheet  in  his  hands,  round 
and  round ;  he  placed  his  knee  against  Hilliard's  back 
and  exercised  all  his  force.  The  dying  man's  eyes 
began  to  bulge  from  their  sockets ;  it  made  me  sick, 
but  I  looked  on  as  if  fascinated.  Hilliard's  hands 
clutched  frantically  at  the  coils  around  his  neck.  '  Keep 
his  hands  down,  can't  you  ? '  shouted   Davis  in  a  rage. 

216 


THK    HKI.LKVIJK    IIOSIMTAL    CASK 

Dean  and  Miirsliall  seized  the  helpless  man's  hands ; 
slowly,  remorselessly,  Davis  kept  on  twisting  the  sheet. 
Milliard  began  to  get  black  in  the  face;  his  tongue  was 
hanging  out.  Marshall  got  frightened.  *  Let  up,  he  is 
getting  black ! '  he  said  to  Davis.  Davis  let  out  a  couple 
of  twists  of  the  sheet,  but  did  not  seem  to  like  to  do  it. 
At  last  Hilliard  got  a  litde  breath,  just  a  little.  The 
sheet  was  still  brought  tight  about  the  neck.  '  Now 
will  you  eat  ? '  cried  Davis.  '  No,'  gasped  the  insane 
man.  Davis  was  furious.  '  Well,  I  will  make  you  eat ; 
I  will  choke  you  until  you  do  eat,'  he  shouted,  and  he 
began  to  twist  the  sheet  again.  Milliard's  head  would 
have  fallen  upon  his  breast  but  for  the  fact  that  Davis 
was  holding  it  up.  Me  began  to  get  black  in  the  face 
again.  A  second  time  they  got  frightened,  and  Davis 
eased  up  on  the  string.  Me  untwisted  the  sheet,  but 
still  kept  a  firm  grasp  on  the  folds.  It  took  Hilliard 
some  time  to  come  to.  When  he  did  at  last,  Davis 
again  asked  him  if  he  would  eat.  Milliard  had  just 
breath  enough  to  whisper  faintly,  '  No.'  I  thought  the 
man  was  dying  then.  Davis  twisted  up  the  sheet  again, 
and  cried,  '  Well,  I  will  make  him  eat  or  I  will  choke 
him  to  death.'  Me  twisted  and  twisted  until  I  thought 
he  would  break  the  man's  neck.  Milliard  was  uncon- 
scious at  last.  Davis  jerked  the  man  to  the  floor  and 
kneeled  on  him,  but  still  had  the  strangle  hold  with  his 
knee  giving  him  additional  purchase.  Me  twisted  the 
sheet  until  his  own  fingers  were   sore,   then   the  three 

217 


THE    ART    OF    CROSS-EXAMINATION 

nurses  dragged  the  limp  body  to  the  bath-room,  heaved 
him  into  the  tub  with  his  clothes  on,  and  turned  the 
cold  water  on  him.  He  was  dead  by  this  time,  I  believe. 
He  was  strangled  to  death,  and  the  finishing  touches 
were  put  on  when  they  had  him  on  the  floor.  No  big, 
strong,  healthy  man  could  have  lived  under  that  awful 
strangling.     Hilliard  was  weak  and  feeble." 

The  above  article  appeared  in  the  morning  Journal^ 
a  few  days  after  the  original  publication  in  the  New 
York  World.  The  other  local  papers  immediately  took 
up  the  story,  and  it  is  easy  to  imagine  the  pitch  to  which 
the  public  excitement  and  indignation  were  aroused.  The 
three  nurses  in  charge  of  the  pavilion  at  the  time  of  Hil- 
liard's  death  were  immediately  indicted  for  manslaughter, 
and  the  head  nurse,  Jesse  R.  Davis,  was  promptly  put  on 
trial  in  the  Court  of  General  Sessions,  before  Mr.  Justice 
Cowing  and  a  "special  jury."  The  trial  lasted  three 
weeks,  and  after  deliberating  five  hours  upon  their  ver- 
dict, the  jury  acquitted  the  prisoner. 

The  intense  interest  taken  in  the  case,  not  only  by  the 
public,  but  by  the  medical  profession,  was  increased  by 
the  fact  that  for  the  first  time  in  the  criminal  courts  of 
this  country  two  inmates  of  the  insane  pavilion,  them- 
selves admittedly  insane,  were  called  by  the  prosecution, 
and  sworn  and  accepted  by  the  court  as  witnesses  against 
the  prisoner.  .  One  of  these  witnesses  was  suffering  from 
a  form  of  insanity  known  as  paranoia,  and  the  other  from 
general  paresis.     With  the  exception  of  the  two  insane 

218 


THE    I3ELLEVUE    HOSPJIAL    CASE 

witnesses  and  the  medical  testimony  founded  upon  the 
autopsy,  there  was  no  direct  evidence  on  which  to  con- 
vict the  prisoner  but  the  statement  of  the  newspaper 
reporter,  Minnock.  He  was  the  one  sane  witness  called 
on  behalf  of  the  prosecution,  who  was  an  eye-witness  to 
the  occurrence,  and  the  issues  in  the  case  gradually  nar- 
rowed down  to  a  question  of  veracity  between  the  news- 
paper reporter  and  the  accused  prisoner,  the  testimony 
of  each  of  these  witnesses  being  corroborated  or 
contradicted  on  one  side  or  the  other  by  various  other 
witnesses. 

If  Minnock's  testimony  was  credited  by  the  jury,  the 
prisoner's  contradiction  would  naturally  have  no  effect 
whatever,  and  the  public  prejudice,  indignation,  and 
excitement  ran  so  high  that  the  jury  were  only  too  ready 
and  willing  to  accept  the  newspaper  account  of  the  trans- 
action. The  cross-examination  of  Minnock,  therefore, 
became  of  the  utmost  importance.  It  was  essential  that 
the  effect  of  his  testimony  should  be  broken,  and  counsel 
having  his  cross-examination  in  charge  had  made  the 
most  elaborate  preparations  for  the  task.  Extracts  from 
the  cross-examination  are  here  given  as  illustrations  of 
many  of  the  suggestions  which  have  been  discussed  in 
previous  chapters. 

The  district  attorney  in  charge  of  the  prosecution  was 
Franklin  Pierce,  Esq.  In  his  opening  address  to  the 
jury  he  stated  that  he  "  did  not  believe  that  ever  in  the 
history  of  the  state,  or  indeed  of  the  country,  had  a  jury 

219 


THE    ART    OF   CROSS-EXAMINATION 

been  called  upon  to  decide  such  an  important  case  as  the 
one  on  trial."  He  continued  :  "  There  is  no  fiction  —  no 
'  Hard  Cash  '  —  in  this  case.  The  facts  here  surpass  any- 
thing that  fiction  has  ever  produced.  The  witnesses  will 
describe  the  most  terrible  treatment  that  was  ever  given 
to  an  insane  man.  No  writer  of  fiction  could  have  put 
them  in  a  book.  They  would  appear  so  improbable  and 
monstrous  that  his  manuscript  would  have  been  rejected 
as  soon  as  offered  to  a  publisher." 

When  the  reporter,  Minnock,  stepped  to  the  witness- 
stand,  the  court  room  was  crowded,  and  yet  so  intense 
was  the  excitement  that  every  word  the  witness  uttered 
could  be  distinctly  heard  by  everybody  present.  He 
gave  his  evidence  in  chief  clearly  and  calmly,  and  with 
no  apparent  motive  but  to  narrate  correctly  the  details  of 
the  crime  he  had  seen  committed.  Any  one  unaware 
of  his  career  would  have  regarded  him  as  an  unusually 
clever  and  apparently  honest  and  courageous  man  with  a 
keen  memory  and  with  just  the  slightest  touch  of  gratifi- 
cation at  the  important  position  he  was  holding  in  the 
public  eye  in  consequence  of  his  having  unearthed  the 
atrocities  per|3etrated  in  our  public  hospitals. 

His  direct  evidence  was  practically  a  repetition  of  his 
newspaper  article  already  referred  to,  only  much  more  in 
detail.  After  questioning  him  for  about  an  hour,  the 
district  attorney  sat  down  with  a  confident  "  He  is  your 
witness,  if  you  wish  to  cross-examine  him." 

No  one  who  har  never  experienced  it  can  have  the 

220 


THE    BELLKVUK    HOSPITAL    CASE 

slightest  appreciation  of  the  nervous  excitement  attendant 
on  being  called  upon  to  cross-examine  the  chief  witness 
in  a  case  involving  the  life  or  liberty  of  a  human  being. 
If  Minnock  withstood  the  cross-examination,  the  nurse 
Davis,  apparently  a  most  worthy  and  refined  young  man 
who  had  just  graduated  from  the  Mills  Training  School 
for  Nurses,  and  about  to  be  married  to  a  most  estimable 
young  lady,  would  have  to  spend  at  least  the  next  twenty 
years  of  his  life  at  hard  labor  in  state  prison. 

The  first  fifteen  minutes  of  the  cross-examination  were 
devoted  to  showing  that  the  witness  was  a  thoroughly 
educated  man,  twenty-five  years  of  age,  a  graduate  of 
Saint  John's  College,  Fordham,  New  York,  the  Sacred 
Heart  Academy,  the  Francis  Xavier,  the  De  Lasalle  In- 
stitution, and  had  travelled  extensively  in  Europe  and 
America.     The  cross-examination  then  proceeded  :  — 

Counsel  (amiably).  "  Mr.  Minnock,  I  believe  you  have 
written  the  story  of  your  life  and  published  it  in  the 
Bridgeport  Sunday  Herald  as  recently  as  last  December } 
I  hold  the  original  article  in  my  hand." 

Witness.    "It  was  not  the  story  of  my  life." 

Counsel.  "  The  article  is  signed  by  you  and  purports 
to  be  a  history  of  your  life." 

Witness.  "  It  is  an  imaginaiy  stoiy  dealing  with  hyp- 
notism.    Fiction  partly,  but  it  dealt  with  facts." 

Counsel.  "  That  is,  you  mean  to  say  you  mixed  fiction 
and  fact  in  the  history  of  your  life }  " 

Witness.    "  Yes,  sir." 

221 


THE   ART    OF    CROSS-EXAMINATION 

Counsel.  "  In  other  words,  you  dressed  up  facts  with 
fiction  to  make  them  more  interesting  ? " 

Witness.    "  Precisely." 

Counsel.  "  When  in  this  article  you  wrote  that  at  the 
age  of  twelve  you  ran  away  with  a  circus,  was  that  dressed 
upr 

Witness.   "  Yes,  sir." 

Counsel.   "  It  was  not  true  ? " 

Wit7iess.   "  No,  sir." 

Counsel.  "  When  you  said  that  you  continued  with 
this  circus  for  over  a  year,  and  went  with  it  to  Belgium, 
there  was  a  particle  of  truth  in  that  because  you  did,  as 
a  matter  of  fact,  go  to  Belgium,  but  not  with  the  circus 
as  a  public  clown ;  is  that  the  idea  ?  " 

Witness.    "  Yes,  sir." 

Counsel.  "  So  there  was  some  little  truth  mixed  in  at 
this  point  with  the  other  matter?  " 

Witness.    "  Yes,  sir." 

Counsel.  "  When  you  wrote  that  you  were  introduced 
in  Belgium,  at  the  Hospital  General,  to  Charcot,  the  cele- 
brated Parisian  hypnotist,  was  there  some  truth  in  that?" 

Witness.    "  No,  sir." 

Counsel.  "  You  knew  that  Charcot  was  one  of  the 
originators  of  hypnotism  in  France,  didn't  you  ?  " 

Witness.  "  I  knew  that  he  was  one  of  the  original 
hypnotists." 

Counsel.  "  How  did  you  come  to  state  in  the  news- 
paper history  of  your  life  that  you  were  introduced  to 

222 


THE    HKLLKVUK    HOSPITAL    CASK 

Charcot  at  the  Hospital  General  at  Paris  if  that  was  not 
true  ? " 

Witness.    "  While  there  1  met  a  Charcot." 

Counsel.    "  Oh,  I  see." 

Witness.    "  But  not  the  original  Charcot." 

Counsel.    "  Which  Charcot  did  you  meet  ?  " 

Witness.  "  A  woman.  She  was  a  lady  assuming  the 
name  of  Charcot,  claiming  to  be  Madame  Charcot." 

Counsel.  "  So  that  when  you  wrote  in  this  article  that 
you  had  met  Charcot,  you  intended  people  to  understand 
that  it  was  the  celebrated  Professor  Charcot,  and  it  was 
partly  true,  because  there  was  a  woman  by  the  name  of 
Charcot  whom  you  had  really  met } " 

Witness.    "  Precisely." 

Counsel  (quietly).  "  That  is  to  say,  there  was  some 
truth  in  it.?" 

Witness.    "  Yes,  sir." 

Counsel.  "  When  in  that  article  you  said  that  Charcot 
taught  you  to  stand  pain,  was  there  any  truth  in  that.? " 

Witness.    "No." 

Cou7tsel.  "  Did  you  as  a  matter  of  fact  learn  to  stand 
pain .? " 

Witness.    "No." 

Counsel.  "  When  you  said  in  this  article  that  Charcot 
began  by  sticking  pins  and  knives  into  you  little  by 
little,  so  as  to  accustom  you  to  standing  pain,  was  that 
all  fiction.?" 

Witness.   "  Yes,  sir." 

223 


THE    ART    OF    CROSS-EXAMINATION 

Counsel.  "  When  you  wrote  that  Charcot  taught  you 
to  reduce  your  respirations  to  two  a  minute,  so  as  to 
make  your  body  insensible  to  pain,  was  that  fiction  ?  " 

Witness.    "  Purely  imagination." 

Court  (interrupting).  "  Counsellor,  I  will  not  allow 
you  to  go  further  in  this  line  of  inquiry.  The  witness 
himself  says  his  article  was  almost  entirely  fiction,  some 
of  it  founded  upon  fact.  I  will  allow  you  the  greatest 
latitude  in  a  proper  way,  but  not  in  this  direction." 

Counsel.    "Your  Honor  does  not  catch  the  point." 

Court.    "  I  do  not  think  I  do." 

Counsel.  "  This  prosecution  was  started  by  a  news- 
paper article  written  by  the  witness,  and  published  in 
the  morning  Journal.  It  is  the  claim  of  the  defence 
that  the  newspaper  article  was  a  mixture  of  fact  and  fic- 
tion, mostly  fiction.  The  witness  has  already  admitted 
that  the  history  of  his  life,  published  but  a  few  months 
ago,  and  written  and  signed  by  himself  and  sold  as  a  his- 
tory of  his  life,  was  a  mixture  of  fact  and  fiction,  mostly 
fiction.  Would  it  not  be  instructive  to  the  jury  to  learn 
from  the  lips  of  the  witness  himself  how  far  he  dressed 
up  the  pretended  history  of  his  own  life,  that  they  may 
draw  from  it  some  inference  as  to  how  far  he  has  like- 
wise dressed  up  the  article  which  was  the  origin  of  this 
prosecution  ?  " 

Court.  "  I  shall  grant  you  the  greatest  latitude  in  ex- 
amination of  the  witness  in  regard  to  the  newspaper 
article  which  he  published  in  regard  to  this  case,  but  I 

224 


THE    BELLEVUE    HOSPITAL    CASE 

exclude  all  questions  relating  to  the  witness's  newspaper 
history  of  his  own  life." 

Counsel.  "  Did  you  not  have  yourself  photographed 
and  published  in  the  newspapers  in  connection  with  the 
history  of  your  life,  with  your  mouth  and  lips  and  ears 
sewed  up,  while  you  were  insensible  to  pain  ? " 

Court.    "  Question  excluded." 

Counsel.  "  Did  you  not  publish  a  picture  of  yourself 
in  connection  with  the  pretended  history  of  your  life, 
representing  yourself  upon  a  cross,  spiked  hand  and  foot, 
but  insensible  to  pain,  in  consequence  of  the  instruction 
you  had  received  from  Professor  Charcot  ?  " 

Court.  "  Question  excluded." 

Counsel.  "  I  offer  these  pictures  and  articles  in  evi- 
dence." 

Court  (roughly).    "  Excluded." 

Counsel.  "  In  the  article  you  published  in  the  New 
York  Journal,  wherein  you  described  the  occurrences  in 
the  present  case,  which  you  have  just  now  related  upon 
the  witness-stand,  did  you  there  have  yourself  represented 
as  in  the  position  of  the  insane  patient,  with  a  sheet 
twisted  around  your  neck,  and  held  by  the  hands  of  the 
hospital  nurse  who  was  strangling  you  to  death }  " 

Witness.  "  I  wrote  the  article,  but  I  did  not  pose  for 
the  picture.  The  picture  was  posed  for  by  some  one  else 
who  looked  like  me." 

Counsel  (stepping  up  to  the  witness  and  handing  him 
the  newspaper  article).  "  Are  not  these  words  under 
p  225 


THE   ART    OF   CROSS-EXAMINATION 

your  picture,  '  This    is    how  I  saw  it  done,  Thomas  J. 
Minnock,'  a  facsimile  of  your  handwriting  ?  " 

Witness.    "  Yes,  sir,  it  is  my  handwriting." 

Counsel.  "  Referring  to  the  history  of  your  Hfe  again 
how  many  imaginary  articles  on  the  subject  have  you 
written  for  the  newspapers  throughout  the  country  ? " 

Witness.    "  One." 

Counsel.  "  You  have  put  several  articles  in  New  York 
papers,  have  you  not  ?  " 

Wit7iess.  "  It  was  only  the  original  story.  It  has  since 
been  redressed,  that's  all." 

Counsel.  "  Each  time  you  signed  the  article  and  sold 
it  to  the  newspaper  for  money,  did  you  not  ? " 

Court.    "  Excluded." 

Counsel  (with  a  sudden  change  of  manner,  and  in  a 
loud  voice,  turning  to  the  audience)o  "  Is  the  chief  of 
police  of  Bridgeport,  Connecticut,  in  the  court  room } 
(Turning  to  the  witness.)  Mr.  Minnock,  do  you  know 
this  gentleman  ? " 

Witness.    "  I  do." 

Counsel.  "  Tell  the  jury  when  you  first  made  his 
acquaintance." 

Witness.  "  It  was  when  I  was  arrested  in  the  At- 
lantic Hotel,  in  Bridgeport,  Connecticut,  with  my 
wife." 

Counsel.   "  Was  she  your  wife  at  the  time  ?  " 

Witness.    "  Yes,  sir." 

Counsel.   "  She  was  but  sixteen  years  old .? " 

226 


THE  bellevup:  hospital  case 

Witness.   "  Seventeen,  I  guess." 

Counsel.  "  You  were  arrested  on  the  ground  that  you 
were  trying  to  drug  this  sixteen-year-old  girl  and  kidnap 
her  to  New  York.     Do  you  deny  it  ?  " 

Wihtess    (doggedly).    "  I  was  arrested." 

Counsel  (sharply).  "  You  know  the  cause  of  the  arrest 
to  be  as  I  have  stated }     Answer  yes  or  no  I  " 

Witness  (hesitating).    "  Yes,  sir." 

Counsel.  "You  were  permitted  by  the  prosecuting 
attorney,  F.  A.  Bartlett,  to  be  discharged  without 
trial  on  your  promise  to  leave  the  state,  were  you 
not.?" 

Witness.    "  I  don't  remember  anything  of  that." 

Counsel    "  Do  you  deny  it }  " 

Witness.    "  I  do." 

Counsel  "  Did  you  have  another  young  man  with  you 
upon  that  occasion  }  " 

Witness.    "  I  did.     A  college  chum." 

Counsel  "  Was  he  also  married  to  this  sixteen-year- 
old  girl.?" 

Witness   (no  answer). 

Counsel  (pointedly  at  witness).  "  Was  he  married  to 
this  girl  also  .?  " 

Witness.    "  Why,  no." 

Counsel.  "  You  say  you  were  married  to  her.  Give 
me  the  date  of  your  marriage." 

Witness  (hesitating).    "  I  don't  remember  the  date." 

Counsel.    "  How  many  years  ago  was  it .?  " 

227 


THE    ART    OF    CROSS-EXAMINATION 

Witness.    "  I  don't  remember." 

Counsel.   "  How  many  years  ago  was  it  ?  " 

Witness.   "  I  couldn't  say." 

Counsel.  "  What  is  your  best  memory  as  to  how  many 
years  ago  it  was  ?  " 

Wit?iess.    "  I  can't  recollect." 

Counsel.  "  Try  to  recollect  about  when  you  were 
married." 

Witness.  "  I  was  married  twice,  civil  marriage  and 
church  marriage." 

Counsel.  "  I  am  talking  about  Miss  Sadie  Cook. 
When  were  you  married  to  Sadie  Cook,  and  where  is 
the  marriage  recorded  ?  " 

Witness.    "  I  tell  you  I  don't  remember." 

Counsel.    "  Try." 

Witness.  "  It  might  be  five  or  six  or  seven  or  ten 
years  ago." 

Counsel.  "  Then  you  cannot  tell  within  five  years  of 
the  time  when  you  were  married,  and  you  ^re  now  only 
twenty-five  years  old }  " 

Witness.   "  I  cannot." 

Counsel.   "  Were  you  married  at  fifteen  years  of  age  ?  " 

Witness.    "  I  don't  think  I  was." 

Counsel.  "  You  know,  do  you  not,  that  your  marriage 
was  several  years  after  this  arrest  in  Bridgeport  that  I 
have  been  speaking  to  you  about  ?  " 

Witness.    "  I  know  nothing  of  the  kind." 

Counsel  (resolutely).    "  Do  you  deny  it  ?  " 

228 


THE  bellp:vue  hospital  case 

Witness  (hesitating).    "  Well,  no,  I  do  not  deny  it." 

Counsel.  "  I  hand  you  now  what  ])urports  to  be  the 
certificate  of  your  marriage,  three  years  ago.  Is  the  date 
correct } " 

Wthiess.    "  I  never  saw  it  before." 

Counsel.  "  Does  the  certificate  correctly  state  the  time 
and  place  and  circumstances  of  your  marriage }  " 

Witness.  "  I  refuse  to  answer  the  question  on  the 
ground  that  it  would  incriminate  my  wife." 

The  theory  on  which  the  defence  was  being  made 
was  that  the  witness,  Minnock,  had  manufactured  the 
story  which  he  had  printed  in  the  paper,  and  later  swore 
to  before  the  grand  jury  and  at  the  trial.  The  effort  in 
his  cross-examination  was  to  show  that  he  was  the  kind 
of  man  who  would  manufacture  such  a  story  and  sell  it 
to  the  newspapers,  and  afterward,  when  compelled  to  do 
so,  swear  to  it  in  court. 

Counsel  next  called  the  witness's  attention  to  many 
facts  tending  to  show  that  he  had  been  an  eye-witness 
to  adultery  in  divorce  cases,  and  on  both  sides  of  them, 
first  on  one  side,  then  on  the  other,  in  the  same  case, 
and  that  he  had  been  at  one  time  a  private  detective. 
Men  whom  he  had  robbed  and  blackmailed  and  cheated 
at  cards  were  called  from  the  audience,  one  after  another, 
and  he  was  confronted  with  questions  referring  to  these 
charges,  all  of  which  he  denied  in  the  presence  of  his 
accusers.  The  presiding  judge  having  stated  to  the 
counsel  in  the  hearing  of  the  witness  that  although  he 

229 


THE    ART   OF   CROSS-EXAMINATION 

allowed  the  witness  to  be  brought  face  to  face  with  his 
alleged  accusers,  yet  he  would  allow  no  contradictions 
of  the  witness  on  these  collateral  matters,  Minnock's 
former  defiant  demeanor  immediately  returned. 

The  next  interrogatories  put  to  the  witness  developed 
the  fact  that,  feigning  insanity,  he  had  allowed  himself 
to  be  taken  to  Bellevue  with  the  hope  of  being  trans- 
ferred to  Ward's  Island,  with  the  intention  of  finally 
being  discharged  as  cured,  and  then  writing  sensational 
newspaper  articles  regarding  what  he  had  seen  while  an 
inmate  of  the  public  insane  asylums;  that  in  Bellevue 
Hospital  he  had  been  detected  as  a  malingerer  by  one 
of  the  attending  physicians,  Dr.  Fitch,  and  had  been 
taken  before  a  police  magistrate  where  he  had  stated  in 
open  court  that  he  had  found  everything  in  Bellevue 
"far  better  than  he  had  expected  to  find  it,"  and  that  he 
had  "  no  complaint  to  make  and  nothing  to  criticise." 

The  witness's  mind  was  then  taken  from  the  main  sub- 
ject by  questions  concerning  the  various  conversations 
had  with  the  different  nurses  while  in  the  asylum,  all 
of  which  conversations  he  denied.  The  interrogatories 
were  put  in  such  a  way  as  to  admit  of  a  "  yes  "  or  "  no  " 
answer  only.  Gradually  coming  nearer  to  the  point 
desired  to  be  made,  the  following  questions  were  asked:  — 

Counsel.  "  Did  the  nurse  Gordon  ask  you  why  you 
were  willing  to  submit  to  confinement  as  an  insane 
patient,  and  did  you  reply  that  you  were  a  newspaper 
man  and  under  contract  with  a  Sunday  paper  to  write 

230 


THE    BELLEVUE    HOSPITAL    CASE 

up  the  methods  of  the  asylum,  but  that  the  paper  liad 
repudiated  the  contract  ?  " 

Witness.    "No." 

Counsel.    "  Or  words  to  that  effect  ?  " 

WiUicss.   "No." 

Counsel.  "  I  am  referring  to  a  time  subsequent  to 
your  discharge  from  the  asylum,  and  after  you  had 
returned  to  take  away  your  belongings.  Did  you,  at 
that  time,  tell  the  nurse  Gordon  that  you  had  expected  to 
be  able  to  write  an  article  for  which  you  could  get  $\^o} " 

Wilness.    "  I  did  not." 

Counsel.  "  Did  the  nurse  say  to  you,  '  You  got  fooled 
this  time,  didn't  you .? '  And  did  you  reply,  '  Yes,  but  I 
will  try  to  write  up  something  and  see  if  I  can't  get 
square  with  them ! '  " 

Witness.    "  I  have  no  memory  of  it." 

Counsel.   "  Or  words  to  that  effect .?  " 

Witness.  "I  did  not." 

All  that  preceded  had  served  only  as  a  veiled  introduc- 
tion to  the  next  important  question. 

Cou7tsel  (quietly).  "  At  that  time,  as  a  matter  of  fact, 
did  you  know  anything  you  could  write  about  when  you 
Sfot  back  to  the  Herald  oflfice }  " 

Witness.  "  /  knew  there  was  nothing  to  writer 

Counsel  "  Did  you  know  at  that  time,  or  have  any 
idea,  what  you  would  write  when  you  got  out  ? " 

Witness.  "  Did  I  at  that  time  know .?  Why,  I  knew 
there  was  nothing  to  writer 

231 


THE   ART    OF    CROSS-EXAMINATION 

Counsel  (walking  forward  and  pointing  excitedly  at  the 
witness).  "  Although  you  had  seen  a  man  choked  to 
death  with  a  sheet  on  Wednesday  night,  you  knew  on 
Friday  morning  that  there  was  nothing  you  could  write 
about  ? " 

Witness  (hesitating).  "  I  didn't  know  they  had  killed 
the  man." 

Counsel.  "  Although  you  had  seen  the  patient  fall  un- 
conscious several  times  to  the  floor  after  having  been 
choked  with  the  sheet  twisted  around  his  neck,  you  knew 
there  was  nothing  to  write  about  ? " 

Witness.  "  I  knew  it  was  my  duty  to  go  and  see  the 
charity  commissioner  and  tell  him  about  that." 

Counsel.  *'  But  you  were  a  newspaper  reporter  in  the 
asylum,  for  the  purpose  of  writing  up  an  article.  Do 
you  want  to  take  back  what  you  said  a  moment  ago  — 
that  you  knew  there  was  nothing  to  write  about?" 

Witness.  "  Certainly  not.  I  did  not  know  the  man 
was  dead." 

Counsel.  "  Did  you  not  testify  that  the  morning  after 
you  had  seen  the  patient  choked  into  unconsciousness, 
you  heard  the  nurse  call  up  the  morgue  to  inquire  if 
the  autopsy  had  been  made .''  " 

Witness  (sheepishly.)  "  Well,  the  story  that  I  had  the 
contract  for  with  the  Herald  was  cancelled." 

Connsel.  "  Is  it  not  a  fact  that  within  four  hours  of  the 
time  you  were  finally  discharged  from  the  hospital  on 
Saturday  afternoon,  you  read   the  newspaper  account  of 

232 


THE  bp:llb:vuk  hospital  case 

the  autopsy,  and  then  immediately  wrote  your  story  of 
having  seen  this  i)atient  strangled  to  death  and  offered 
it  for  sale  to  the  New  York  World?  " 

Witness.    "  That  is  right ;  yes,  sir." 

Counsel.  "  You  say  you  knew  it  was  your  duty  to  go 
to  the  charity  commissioner  and  tell  him  what  you  had 
seen.     Did  you  go  to  him  .?  " 

Witness.  "  No,  not  after  I  found  out  through  reading 
the  autopsy  that  the  man  was  killed." 

Counsel  "  Instead,  you  went  to  the  World,  and  offered 
them  the  story  in  which  you  describe  the  way  Milliard 
was  killed  ? " 

Witness.    "Yes." 

Counsel  "  And  you  did  this  within  three  or  four  hours 
of  the  time  you  read  the  newspaper  account  of  the 
autopsy  ?  " 

Witness.    "  Yes." 

Counsel  "The  editors  of  the  World  refused  your 
story  unless  you  would  put  it  in  the  form  of  an  affidavit, 
did  they  not  ?  " 

Witness.    "Yes." 

Counsel.    "  Did  you  put  it  in  the  form  of  an  affidavit.?" 

Witness.    "Yes." 

Counsel.    "  And  that  was  the  very  night  that  you  were 
discharged  from  the  hospital  ?  " 
Witness.    "Yes." 

Counsel  "Every  occurrence  was  then  fresh  in  your 
mind,  was  it  not  ?  " 

233 


THE   ART   OF   CROSS-EXAMINATION 

Wihtess   (hesitating).    "What?" 

Counsel.  "  Were  the  occurrences  of  the  hospital  fresh 
in  your  mind  at  the  time  ? " 

Witness.  "  Well,  not  any  fresher  then  than  they  are 
now." 

Counsel.    *'  As  fresh  as  now  1 " 

Wit7iess.    "  Yes,  sir." 

Counsel  (pausing,  looking  among  his  papers,  selecting 
one  and  walking  up  to  the  witness,  handing  it  to  him). 
"  Take  this  affidavit,  made  that  Friday  night,  and  sold 
to  the  World ;  show  me  where  there  is  a  word  in  it 
about  Davis  having  strangled  the  Frenchman  with  a 
sheet,  the  way  you  have  described  it  here  to-day  to  this 
jury." 

Witness  (refusing  paper).  "  No,  I  don't  think  that  it  is 
there.     It  is  not  necessary  for  me  to  look  it  over." 

Counsel  {^Q)\x\aw^.  "Don't  think  I  You  know  that 
it  is  not  there,  do  you  not  ? " 

Witness  (nervously).    "  Yes,  sir ;  it  is  not  there." 

Counsel.  "  Had  you  forgotten  it  when  you  made  that 
affidavit.?" 

Witness.    "  Yes,  sir." 

Cownsel  (loudly).  "  You  had  forgotten  it,  although  only 
three  days  before  you  had  seen  a  man  strangled  in  your 
presence,  with  a  sheet  twisted  around  his  throat,  and 
had  seen  him  fall  lifeless  upon  the  floor;  you  had  forgot- 
ten it  when  you  described  the  incident  and  made  the 
affidavit  about  it  to  the   World  V 

234 


THE    BELr.P:VUK    HOSPI'I  AI>   CASFC 

Wilness  (hesitating).  "  1  made  two  affidavits.  I  be- 
lieve that  is  in  the  second  affidavit." 

Counsel.  "Answer  my  questions,  Mr.  Minnock.  Is 
there  any  doubt  that  you  had  forgotten  it  when  you 
made  the  first  affidavit  to  the    World?  " 

Witness.    "  I  had  forgotten  it." 

Counsel  (abruptly).    "  When  did  you  recollect }  " 

Witness.  "  I  recollected  it  when  I  made  the  second 
affidavit  before  the  coroner." 

Cou7tsel.    "  And  when  did  you  make  that  .-*  " 

Witness.  "  It  was  a  few  days  afterward,  probably  the 
next  day  or  two." 

Counsel  (looking  among  his  papers,  and  again  walking 
up  to  the  witness).  "  Please  take  the  coroner's  affidavit 
and  point  out  to  the  jury  where  there  is  a  word  about 
a  sheet  having  been  used  to  strangle  this  man." 

Witness  (refusing  paper).    "  Well,  it  may  not  be  there." 

Counsel.    "  Is  it  there  }  " 

Witness  (still  refusing  paper).    "  I  don't  know." 

Cotinsel.    "  Read  it,  read  it  carefully." 

Witness  (reading).    "  I  don't  see  anything  about  it." 

Counsel.   "  Had  you  forgotten  it  at  that  time  as  well.'*" 

Witness  (in  confusion).    "  I  certainly  must  have." 

Counsel.  "  Do  you  want  this  jury  to  believe  that,  hav- 
ing witnessed  this  horrible  scene  which  you  have  de- 
scribed, you  immediately  forgot  it,  and  on  two  different 
occasions  when  you  were  narrating  under  oath  what 
took  place  in  that  hospital,  you  forgot  to  mention  it } " 

235 


THE    ART    OF    CROSS-EXAMINATION 

Witness.    "It  escaped  my  memory." 

Counsel.    "  You  have  testified  as  a  witness  before  in 
this  case,  have  you  not  ?  " 

Witness.    "  Yes,  sir." 

Counsel.    "  Before  the  coroner  ?  " 

Witness.    "  Yes,  sir." 

Counsel.  "  But  this  sheet  incident  escaped  your 
memory    then  ? " 

Witness.    "  It  did  not." 

Counsel  (taking  in  his  hands  the  stenographer's  min- 
utes of  the  coroner's  inquest).  "  Do  you  not  recollect 
that  you  testified  for  two  hours  before  the  coroner  with- 
out mentioning  the  sheet  incident,  and  were  then  ex- 
cused and  were  absent  from  the  court  for  several  days 
before  you  returned  and  gave  the  details  of  the  sheet 
incident }  " 

Witness.    "  Yes,  sir ;  that  is  correct." 

Counsel.  "  Why  did  you  not  give  an  account  of  the 
sheet  incident  on  the  first  day  of  your  testimony }  " 

Witness.  "  Well,  it  escaped  my  memory ;  I  forgot 
it." 

Counsel.  "  Do  you  recollect,  before  beginning  your 
testimony  before  the  coroner,  you  asked  to  look  at  the 
affidavit  that  you  had  made  for  the    World  ?  " 

Witness.  "  Yes,  I  had  been  sick,  and  I  wanted  to 
refresh  my  memory." 

Counsel.  "  Do  you  mean  that  this  scene  that  you 
have  described  so  glibly  to-day  had  faded   out  of  your 

236 


THK    liKLLKVUK    IIOSIM  lAL    CASK 

mind  then,  and  you  wanted  your  affidavit  to  refresh 
your  recollection  ?  " 

Wihiess.  "  No,  it  had  not  faded.  I  merely  wanted  to 
refresh  my  recollection." 

Counsel.  "  Was  it  not  rather  that  you  had  made  u]) 
the  story  in  your  affidavit,  and  you  wanted  the  affidavit 
to  refresh  your  recollection  as  to  the  story  you  had 
manufactured }  " 

Wit7iess.    "No,  sir;  that  is  not  true." 

The  purpose  of  these  questions,  and  the  use  made  of 
the  answers  upon  the  argument,  is  shown  by  the  follow- 
ing extract  from  the  summing  up  :  — 

"  My  point  is  this,  gentlemen  of  the  jury,  and  it  is 
an  unanswerable  one  in  my  judgment,  Mr.  District  At- 
torney :  If  Minnock,  fresh  from  the  asylum,  forgot  this 
sheet  incident  when  he  went  to  sell  his  first  newspaper 
article  to  the  World ;  if  he  also  forgot  it  when  he  went 
to  the  coroner  two  days  afterward  to  make  his  second 
affidavit ;  if  he  still  forgot  it  two  weeks  later  when,  at 
the  inquest,  he  testified  for  two  hours,  without  mention- 
ing it,  and  only  first  recollected  it  when  he  was  recalled 
two  days  afterward,  then  there  is  but  one  inference  to 
be  drawn,  and  that  is,  fliai  lie  never  saw  it,  because  he 
could  not  forget  it  if  he  had  ever  seen  it  /  And  the 
important  feature  is  this:  he  was  a  newspaper  reporter; 
he  was  there,  as  the  district  attorney  says,  '  to  observe 
what  was  going  on.'  He  says  that  he  stood  by  in  that 
part  of  the  room,  pretending  to  take  away  the  dishes  in 

237 


THE   ART    OF    CROSS-EXAMINATION 

order  to  see  what  was  going  on.  He  was  sane,  the 
only  sane  nian  there.  Now  if  he  did  not  see  it,  it  is 
because  it  did  not  take  place,  and  if  it  did  not  take  place, 
the  insane  men  called  here  as  witnesses  could  not  have 
seen  it.  Do  you  see  the  point  ?  Can  you  answer  it  ? 
Let  me  put  it  again.  It  is  not  in  mortal  mind  to  believe 
that  this  man  could  have  seen  such  a  transaction  as  he 
describes  and  ever  have  forgotten  it.  Forget  it  when  he 
writes  his  article  the  night  he  leaves  the  asylum  and 
sells  it  to  the  morning  Wo7^ld  !  Forget  it  two  days 
afterward  when  he  makes  a  second  important  afifidavit ! 
He  makes  still  another  statement,  and  does  not  mention 
it,  and  even  testifies  at  the  coroner's  inquest  two  weeks 
later,  and  leaves  it  out.  Can  the  human  mind  draw  any 
other  inference  from  these  facts  than  that  he  never  saw 
it  —  because  he  could  not  have  forgotten  it  if  he  had 
ever  seen  it  ?  If  he  never  saw  it,  it  did  not  take  place. 
He  was  on  the  spot,  sane,  and  watching  everything 
that  went  on,  for  the  very  purpose  of  reporting  it.  Now 
if  this  sheet  incident  did  not  take  place,  the  insane  men 
could  not  have  seen  it.  This  disposes  not  only  of 
Minnock,  but  of  all  the  testimony  in  the  People's  case. 
In  order  to  say  by  your  verdict  that  that  sheet  incident 
took  place,  you  have  got  to  find  something  that  is  con- 
trary to  all  human  experience ;  that  is,  that  this  man, 
Minnock,  having  seen  the  horrible  strangling  with  the 
sheet,  as  he  described,  could  possibly  have  immediately 
forgotten  it." 

238 


THE    BELLEVUE    HOSPITAL    CASE 

The  contents  of  the  two  affidavits  made  to  the 
World  and  the  coroner  were  next  taken  up,  and  the 
witness  was  first  asked  what  the  occurrence  really  was 
as  he  now  remembered  it.  After  his  answers,  his 
attention  was  called  to  what  he  said  in  his  affidavits,  and 
upon  the  differences  being  made  apparent,  he  was  asked 
whether  what  he  then  swore  to,  or  what  he  now  swore 
to,  was  the  actual  fact;  and  if  he  was  now  testifying  from 
what  he  remembered  to  have  seen,  or  if  he  was  trying  to 
remember  the  facts  as  he  made  them  up  in  the  affidavit. 

Counsel.  "  What  was  the  condition  of  the  Frenchman 
at  supper  time  ?  Was  he  as  gay  and  chipper  as  when 
you  said  that  he  had  warmed  up  after  he  had  been  walk- 
ing around  awhile  ?  " 

Witness.    "  Yes,  sir." 

Cotmsel.  "  But  in  your  affidavit  you  state  that  he 
seemed  to  be  very  feeble  at  supper.     Is  that  true }  " 

Wilitess.    "  Well,  yes  ;  he  did  seem  to  be  feeble." 

Co7uisel.  "  But  you  said  a  moment  ago  that  he  warmed 
up  and  was  all  right  at  supper  time." 

Witness.    "  Oh,  you  just  led  me  into  that." 

Counsel.  "  Well,  I  won't  lead  you  into  anything  more. 
Tell  us  how  he  walked  to  the  table." 

Witness.    "  Well,  slowly." 

Counsel  "  Do  you  remember  what  you  said  in  the 
affidavit .?  " 

Witness,    "  I  certainly  do." 

Cotmsel.    "  What  did  you  say  }  " 

239 


THE    ART    OF    CROSS-EXAMINATION 

Witness.    "  I  said  he  walked  in  a  feeble  condition." 

Co2inseL  "  Are  you  sure  that  you  said  anything  in  the 
affidavit  about  how  he  walked  at  all  ?  " 

Witness.    "  I  am  not  sure." 

Counsel.  "  The  sheet  incident,  which  you  have  de- 
scribed so  graphically,  occurred  at  what  hour  on  Wednes- 
day afternoon }  " 

Witness.    "  About  six  o'clock." 

Co7C7isel.  "  Previous  to  that  time,  during  the  afternoon, 
had  there  been  any  violence  shown  toward  him  ? " 

Witness.  "  Yes  ;  he  was  shoved  down  several  times  by 
the  nurses." 

Cotcnsel.    "  You  mean  they  let  him  fall }  " 

Witness.  "  Yes,  they  thought  it  a  very  funny  thing  to 
let  him  totter  backward,  and  to  fall  down.  They  then 
picked  him  up.  His  knees  seemed  to  be  kind  of  muscle- 
bound,  and  he  tottered  back  and  fell,  and  they  laughed. 
This  was  somewhere  around  three  o'clock  in  the  after- 
noon." 

Counsel.  "  How  many  times,  Mr.  Minnock,  would  you 
swear  that  you  saw  him  fall  over  backward,  and  after 
being  picked  up  by  the  nurse,  let  fall  again  1 " 

Witness.    "  Four  or  five  times  during  the  afternoon." 

Counsel.    "  And  would  he  always  fall  backward  ?  " 

Witness.  "  Yes,  sir ;  he  repeated  the  operation  of  tot- 
tering backward.  He  would  totter  about  five  feet,  and 
would  lose  his  balance  and  would  fall  over  backward." 

The  witness  was  led  on  to  describe  in  detail  this  pro- 

240 


THE    HKIJ.KVUK    HOSPITAL    CASE 

cess  of  holding  up  the  patient,  and  allowing  him  to 
fall  backward,  and  then  picking  him  up  again,  in  order 
to  make  the  contrast  more  apjjarcnt  with  what  he  had 
said  on  previous  occasions  and  had  evidently  forgotten. 

Counsel,  "  I  now  read  to  you  from  the  stenographer's 
minutes  what  you  said  on  this  subject  in  your  sworn 
testimony  given  at  the  coroner's  inquest.  Y(ju  were 
asked,  '  Was  there  any  violence  inflicted  on  Wednesday 
before  dinner  time  ?  '  And  you  answered,  '  I  didn't  see 
any.'  You  were  then  asked  if,  up  to  dinner  time  at  six 
o'clock  on  Wednesday  night,  there  had  been  any  violence  ; 
and  you  answered :  '  No,  sir ;  no  violence  since  Tuesday 
night.  There  was  nothing  happened  until  W^ednesday 
at  supper  time,  somewhere  about  six  o'clock.'  Now  what 
have  you  to  say  as  to  these  different  statements,  both 
given  under  oath,  one  given  at  the  coroner's  inquest,  and 
the  other  given  here  to-day  ?  " 

Witness.  "  Well,  what  I  said  about  violence  may  have 
been  omitted  by  the  coroner's  stenographer." 

Counsel.  "  But  did  you  swear  to  the  answers  that  I 
have  just  read  to  you  before  the  coroner  ?  " 

Witness.  "  I  may  have,  and  I  may  not  have.  I  don't 
know." 

Counsel.  "  If  you  swore  before  the  coroner  there  was 
no  violence,  and  nothing  happened  until  Wednesday 
after  supper,  did  you  mean  to  say  it  ?  " 

Witness.   "  I  don't  remember." 

Counsel.  "  After  hearing  read  what  you  swore  to  at 
Q  241 


THE   ART    OF   CROSS-EXAMINATION 

the  coroner's  inquest,  do  you  still  maintain  the  truth  of 
what  you  have  sworn  to  at  this  trial,  as  to  seeing  the  nurse 
let  the  patient  fall  backward  four  or  five  times,  and  pick 
him  up  and  laugh  at  him  ? " 

Witness.   "  I  certainly  do." 

Counsel.  "  I  again  read  you  from  the  coroner's  min- 
utes a  question  asked  you  by  the  coroner  himself. 
Question  by  the  coroner,  '  Did  you  at  any  time  while  in 
the  office  or  the  large  room  of  the  asylum  see  HilHard 
fall  or  stumble  ? '  Answer,  '  No,  sir ;  I  never  did.'  What 
have  you  to  say  to  that  t  " 

Witness.   "  That  is  correct." 

Counsel.  "  Then  what  becomes  of  your  statement 
made  to  the  jury  but  fifteen  minutes  ago,  that  you  saw 
him  totter  and  fall  backward  several  times  }  " 

Witness.  "  It  was  brought  out  later  on  before  the 
coroner." 

Counsel.  "  Brought  out  later  on !  Let  me  read  to 
you  the  next  question  put  to  you  before  the  coroner. 
Question,  '  Did  you  at  any  time  see  him  try  to  walk 
or  run  away  and  fall  ? '  Answer,  '  No,  I  never  saw  him 
fall.'     What  have  you  to  say  to  that }  " 

Witness.  "  Well,  I  must  have  put  in  about  the  tot- 
tering in  my  affidavit,  and  omitted  it  later  before  the 
coroner." 

At  the  beginning  of  the  cross-examination  it  had  been 
necessary  for  the  counsel  to  fight  with  the  Court  over 
nearly  every  question  asked ;  and  question  after  question 

242 


THE    BELLEVUE    HOSPITAL    CASE 

was  ruled  out.  As  the  examination  proceeded,  however, 
the  Court  began  to  change  its  attitude  entirely  toward 
the  witness.  The  presiding  judge  constantly  frowned 
on  the  witness,  kept  his  eyes  riveted  upon  him,  and  finally 
broke  out  at  this  juncture:  "Let  me  caution  you,  Mr. 
Minnock,  once  for  all,  you  are  here  to  answer  counsel's 
questions.  If  you  can't  answer  them,  say  so  ;  and  if  you 
can  answer  them,  do  so  ;  and  if  you  have  no  recollection, 
say  so." 

Witness.   "  Well,    your    Honor,    Mr.   has    been 

cross-examining  me  very  severely  about  my  wife,  which 
he  has  no  right  to  do." 

Court.  "  You  have  no  right  to  bring  that  up.  He  has 
a  perfect  right  to  cross-examine  you." 

Witness  (losing  his  temper  completely).  "  That  man 
wouldn't  dare  to  ask  me  those  questions  outside.  He 
knows  that  he  is  under  the  protection  of  the  court,  or 
I  would  break  his  neck." 

Court.  "  You  are  making  a  poor  exhibit  of  yourself. 
Answer  the  questions,  sir." 

Counsel.  "  You  don't  seem  to  have  any  memory  at  all 
about  this  transaction.  Are  you  testifying  from  memory 
as  to  what  you  saw,  or  making  up  as  you  go  along } " 

Witness  (no  answer). 

Counsel.   Which  is  it.?" 

Witness  (doggedly).    "  I  am  telling  what  I  saw." 

Counsel.  "  Well,  listen  to  this  then.  You  said  in  your 
affidavit :  '  The  blood  was  all  over  the  floor.   It  was  covered 

243 


THE    ART   OF   CROSS-EXAMINATION 

with  Hilliard's  blood,  and  the  scrub  woman  came  Tues- 
day and  Wednesday  morning,  and  washed  the  blood  away.' 
Is  that  right  ?  " 

Witness.   "  Yes,  sir." 

Cotiusel.  "  Why,  I  understood  you  to  say  that  you 
didn't  get  up  Wednesday  morning  until  noon.  How 
could  you  see  the  scrub  woman  wash  the  blood 
away  ?  " 

Wiijiess.  "  They  were  at  the  farther  end  of  the  hall. 
They  washed  the  whole  pavilion.  I  didn't  see  them 
Wednesday  morning;  it  was  Tuesday  morning  I  saw 
them  scrubbing." 

Counsel.  "  You  seem  to  have  forgotten  that  Hilliard, 
the  deceased,  did  not  arrive  at  the  pavilion  until  Tuesday 
afternoon  at  four  o'clock.  What  have  you  to  say  to 
that  ? " 

Witness.  "  Well,  there  were  other  people  who  got  beat- 
ings besides  him." 

Counsel.  "  Then  that  is  what  you  meant  to  refer  to  in 
your  affidavit,  when  speaking  of  Hilliard's  blood  upon  the 
floor.     You  meant  beatings  of  other  people }  " 

Witness.    "  Yes  sir  —  on  Tuesday." 

The  witness  was  then  forced  to  testify  to  minor  details, 
which,  within  the  knowledge  of  the  defence,  could  be  con- 
tradicted by  a  dozen  disinterested  witnesses.  Such,  for 
instance,  as  hearing  the  nurse  Davis  call  up  the  morgue, 
the  morning  after  Hilliard  was  killed,  at  least  a  dozen 
times  on  the  telephone,  and  anxiously  inquire  what  had 

244 


THE    IJKLLKVUK    UOSPl'l  Af.    CASE 

been  disclosed  by  the  autopsy ;  whereas,  in  fact,  there  was 
no  direct  telephonic  communication  whatever  between 
the  morgue  and  the  insane  pavilion  ;  and  the  morgue 
attendants  were  prepared  to  swear  that  no  one  had  called 
them  up  concerning  the  Milliard  autopsy,  and  that  there 
were  no  inquiries  from  any  source.  The  witness  was  next 
made  to  testify  affirmatively  to  minor  facts  that  could  be, 
and  were  afterward,  contradicted  by  Dr.  Wildman,  by  Dr. 
Moore,  by  Dr.  Fitch,  by  Justice  Hogman,  by  night  nurses 
Clancy  and  Gordon,  by  Mr.  Dwyer,  Mr.  Hayes,  Mr.  Fayne, 
by  Gleason  the  registrar,  by  Spencer  the  electrician,  by 
Jackson  the  janitor,  and  by  several  of  the  state's  own 
witnesses  who  were  to  be  called  later. 

By  this  time  the  witness  had  begun  to  flounder  help- 
lessly. He  contradicted  himself  constantly,  became  red 
and  pale  by  turns,  hesitated  before  each  answer,  at  times 
corrected  his  answers,  at  others  was  silent  and  made  no 
answer  at  all.  At  the  expiration  of  four  hours  he  left 
the  witness-stand  a  thoroughly  discredited,  haggard,  and 
wretched  object.  The  court  ordered  him  to  return  the 
following  day,  but  he  never  was  seen  again  at  the 
trial. 

A  w^eek  later,  his  foster-mother,  when  called  to  the  wit- 
ness-chair by  the  defence,  handed  to  the  judge  a  letter 
received  that  morning  from  her  son,  who  was  in  Phila- 
delphia (wdiich,  however,  was  not  allowed  to  be  shown  to 
the  jury)  in  which  he  wrote  that  he  had  shaken  from 
his  feet  the  dust  of  New  York  forever,  and  would  never 

245 


THE    ART   OF   CROSS-EXAMINATION 

return ;  that  he  felt  he  had  been  ruined,  and  would  be 
arrested  for  perjury  if  he  came  back,  and  requested  money 
that  he  might  travel  far  into  the  West  and  commence 
life  anew.  It  was  altogether  the  most  tragic  incident 
in  the  experience  of  the  writer. 


246 


CHAPTER   XIV 

THE   CROSS-EXAMINATION   OF  JEREMIAH   SMITH    BY   SIR 
ALEXANDER   COCKBURN    IN   THE   WILLIAM    PALMER   CASE 


CHAPTER   XIV 

THE       CROSS-EXAMINATION     OF      JEREMIAH       SMITH      BY      SIR 
ALEXANDER    COCKBURN    IN    THE    WILLIAM    PALMER    CASE 

It  was  the  cross-examination  of  a  Birmingham  attor- 
ney, named  Jeremiah  Smith,  by  Sir  Alexander  Cockburn, 
then  Attorney-General  and  afterward  Chief  Justice  of 
England,  in  the  celebrated  trial  of  William  Palmer  for 
taking  the  life  of  John  Parsons  Cook  by  poison,  that 
finally  turned  the  tide,  in  this  closely  contested  case, 
against  the  prisoner,  and  resulted  in  his  conviction  and 
execution.  An  observer  of  such  long  experience  as  Mr. 
Justice  Stephens  said  of  this  cross-examination  that  "  it 
was  something  to  be  heard  and  seen,  but  incapable  of 
being  described." 

William  Palmer  at  the  time  of  his  trial  was  thirty-one 
years  old.  He  was  a  physician  by  profession,  but  had 
for  several  years  prior  to  his  trial  given  up  the  active 
practice  of  medicine  and  had  devoted  all  his  time  to  the 
turf.  His  victim,  John  Parsons  Cook,  was  also  a  young 
man  of  decent  family,  originally  intended  for  the  pro- 
fession of  the  law,  but  after  inheriting  some  ^15,000,  also 
betook  himself  to  the  turf.  He  kept  race  horses  and 
betted  considerably,  and  in  the  course  of  his  operations 

249 


THE    ART    OF    CROSS-EXAMINATION 

became  intimate  with  Palmer.  At  the  time  of  his 
acquaintance  with  Cook,  Palmer  had  become  involved 
financially  through  forging  the  name  of  his  mother,  a 
woman  of  considerable  property,  as  indorser  of  his  notes. 
These  indorsements  amounted  to  the  sum  of  ^13,000. 
He  had  effected  an  insurance  upon  the  life  of  his  wife 
for  ^13,000,  and  the  policies  of  insurance  he  had  given 
as  collateral  on  the  forged  notes.  Upon  the  death  of 
his  wife  he  was  enabled  to  pay  off  the  first  notes,  but 
shortly  issued  fresh  ones  to  the  amount  of  ^12,500,  had 
them  discounted  at  the  rate  of  sixty  per  cent,  and  gave  as 
new  collateral,  policies  of  insurance  of  an  equal  amount 
upon  his  brother's  life,  which  policies  had  been  assigned 
to  himself.  Upon  his  brother's  death,  there  being  a 
year's  interim  between  the  death  of  his  wife  and  brother, 
the  companies  in  which  the  insurance  had  been  effected 
declined  to  pay,  and  Palmer  found  himself  confronted 
with  suits  upon  these  forged  notes  and  the  exposure  of 
his  forgeries. 

It  was  for  the  supposed  intention  of  getting  possession 
of  Cook's  money  and  race  horses  that  he  took  the  life  of 
his  intimate  companion. 

The  trial  was  held  in  the  Central  Criminal  Court, 
London,  May  14,  1856,  Lord  Campbell  presiding,  and 
has  ever  since  maintained  its  reputation  as  being  one  of 
the  most  learned  trials  in  the  history  of  the  criminal 
courts  of   the  world. 

H.    D.  Traill,  in   the   English  Illustrated  Magazine, 

250 


CROSS-EXAMINATION    OK   JEREMIAH    SMITH 

gives  a  most  graphic  account  of  the  incidents  during  the 
cross-examination  of  Jeremiah  Smith, 

" '  It  was  the  riding  that  did  it,'  exclaimed  one  of  the 
greatest  criminals  of  the  century  in  extorted  admiration 
of  the  skill  with  which  one  of  the  greatest  advocates  of 
the  century  had  brought  Justice  in  a  winner  by  a  short 
head  in  one  of  the  century's  greatest  trials.  Sir  Alex- 
ander Cockburn  is  said  to  have  been  more  proud  of  this 
tribute  from  the  eminent  sportsman  and  poisoner  whom 
he  hunted  to  the  gallows  post,  than  of  any  other  of  the 
many  triumphs  of  his  brilliant  career.  And  undoubtedly 
it  has  all  the  ring  of  one  of  those  utterances  which  come 
straight  from  the  heart  and  attest  their  source  by  taking 
shape  in  the  form  of  words  most  familiar  to  the  speaker's 
lips.  There  is  plenty  of  evidence  to  the  critical  attention 
with  which  Mr.  William  Palmer  observed  the  jockeyship 
of  the  attorney  in  driving  that  terribly  exciting  race  for 
life. 

"  There  exists,  or  existed  once,  a  slip  of  paper  about 
six  inches  long  by  an  inch  broad  —  just  such  a  slip,  in 
fact,  as  a  man  might  tear  irregularly  off  the  top  of  a 
sheet  of  foolscap,  which  bears  this  calm  and  matter-of- 
fact  legend,  more  impressive  than  the  most  impassioned 
prose.  '  I  suppose  you  think  that  last  witness  did  harm.' 
It  is  one  of  those  notes  which  Palmer  subscribed  from 
time  to  time  and  turned  over  to  his  counsel  to  read  and, 
if  necessaiy,  reply  to.  There  is  no  sign  of  trembling  in 
the  hand  that  wrote  it.     Yet  it  was  written  —  this  one  — 

251 


THE    ART    OF    CROSS-EXAMINATION 

just  at  the  close  of  Sir  Alexander  Cockburn's  memorable 
cross-examination.  It  was  the  conviction  of  the  expert 
section  of  the  audience  that  when  the  attorney-general 
resumed  his  seat,  the  halter  was  knotted  around  the  neck 
of  the  prisoner  too  firmly  to  be  loosed.  There  is  little 
doubt  that  the  doomed  wretch  read  as  much  in  the  face 
of  his  counsel,  and  that  the  outward  indifference  of  the 
hastily  penned  inquiry  which  he  flung  across  to  them 
must  have  caused  a  silent  agony  of  doubt  and  dread. 

"  Palmer,  of  course,  was  not  as  well  accustomed  to 
observe  the  manners  of  the  presiding  judge  as  were  the 
professional  spectators  of  the  scene,  but  if  so,  he  would 
have  drawn  the  worst  possible  augury  from  Lord  Camp- 
bell's increasing  politeness  to  him  after  this  incident  in 
the  trial  —  a  form  of  demeanor  toward  a  prisoner  which 
always  indicated  that  in  that  distinguished  judge's 
opinion,    his    doom    was    certain. 

"  Yet  the  cross-examination  of  Mr.  Smith,  important 
as  its  consequences  are  said  to  have  been,  might  easily 
be  qtwted  as  a  very  doubtful  illustration  of  the  value  of 
this  formidable  engine  for  the  extraction,  or  supposed 
extraction,  of  the  truth. 

"  Its  effect  upon  the  witness  himself  left  nothing  to 
be  desired  from  the  point  of  view  of  the  operator.  No 
abbreviation,  in  fact,  can  give  the  effect  of  it.  The  wit- 
ness's efforts  to  gain  time,  and  his  distress  as  the  various 
answers  were  extorted  from  him  by  degrees,  may  be 
faintly  traced  in  the  report.     His  face  was  covered  with 

252 


CROSS-EXAMINATION    OF    JKRKMIAH    SMITH 

sweat,  and  the  papers  put  into  his  hands  shook  and 
rustled.  These  papers,  it  must  be  admitted,  were  some 
of  them  of  a  sufficiently  agitating  character.  Mr.  Smith 
had  had  to  confess  with  great  reluctance  that  he  had 
witnessed  the  assignment  of  a  policy  for  ^13,000  by 
Walter  to  William  Palmer,  who  was  suspected,  and 
indeed  as  good  as  known,  to  have  been  guilty  of  murder- 
ing him ;  he  had  had  to  confess  that  he  wrote  to  an  office 
to  effect  an  insurance  for  ^10,000  on  the  life  of  a  groom 
of  Palmers  in  receipt  of  ;/^i  a  week  as  wages;  he  had 
been  compelled  to  admit  the  self-impeachment  of  having 
tried,  after  Walter  Palmer's  death,  to  get  his  widow  to 
give  up  her  claim  on  the  policy.  The  result  was  that 
Lord  Campbell,  in  summing  up,  asked  the  jury  whether 
they  could  believe  a  man  who  so  disgraced  himself,  in 
the  witness-box.  The  jury  thought  they  couldn't,  and 
they  didn't.  The  witness,  whose  evidence  was  to  the  ef- 
fect that  Palmer  was  not  at  his  victim's  bedside,  but  some 
miles  awa}^  at  a  time  when,  on  the  theory  of  the  prose- 
cution, he  was  substituting  poisonous  drugs  for  the 
medicine  supplied  to  the  sick  man  by  the  doctor,  was  dis- 
believed. Yet  it  is  nevertheless  tolerably  certain  from 
other  evidence  of  an  unimpeachable  kind  that  ferem,iah 
Smith  was  speaking  the  truths 

The  text  of  the  cross-examination  that  follows  is  taken 
from  the  unabridged  edition  of  the  Times  "  Report  of  the 
Trial  of  William  Palmer,"  containing  the  shorthand  notes 
taken  from  day  to  day,  and  published  in  London  in  1856. 

253 


THE   ART   OF    CROSS-EXAMINATION 

Attorney- General.  "  Are  you  the  gentleman  who  took 
Mr.  Myattto  Stafford  Gaol?" 

Smith.   "  I  am." 

Attorney-General.   "  Have  you  known  Palmer  long  ? " 

Smith.  "  I  have  known  him  long  and  very  intimately, 
and  have  been  employed  a  good  deal  as  an  attorney  by 
Palmer  and  his  family." 

Attorney-General.  "  In  December,  1854,  did  he  apply 
to  you  to  attest  a  proposal  of  his  brother,  Walter  Palmer, 
for  ^13,000  in  the  Solicitors  and  General  Insurance 
Office?" 

Smith.  "  I  cannot  recollect ;  if  you  will  let  me  see  the 
document,  I  will  tell  you." 

Attorney-General.  "  Will  you  swear  that  you  were  not 
applied  to  ? " 

Smith.  "  I  will  not  swear  either  that  I  was  not  applied 
to  for  that  purpose  or  that  I  was.  If  you  will  let  me 
see  the  document,  I  shall  recognize  my  writing  at 
once." 

Attorney-General.  "  In  January,  1855,  were  you  applied 
to  by  Palmer  to  attest  a  proposal  of  his  brother  for  ;^  13,000 
in  the  Prince  of  Wales  Office  ? " 

Smith.    "  I  don't  recollect." 

Attorney- General.  "Don't  recollect!  Why,  ;^  13,000 
was  a  large  sum  for  a  man  like  Walter  Palmer,  wasn't 
it,  who  hadn't  a  shilling  in  the  world  ? " 

Smith.  "  Oh,  he  had  money,  because  I  know  that  he 
lived  retired  and  carried  on  no  business." 

254 


CROSS-EXAMINATION    OF   JEREMIAH    SMIi  11 

Attorney-General.  "  Didn't  you  know  that  he  was  an 
uncertified  bankrupt?  " 

Smith.  "  1  know  that  he  had  been  a  bankrupt  some 
years  before,  but  I  did  not  know  that  he  was  an  uncer- 
tified bankrupt.  I  know  that  he  had  an  allowance  from 
his  mother,  l^ut  I  do  not  know  whether  he  had  money 
from  any  otlier  source.  I  believe  that  his  brother,  William 
[the  prisoner],  gave  him  money  at  different  times." 

Attorney-General.  "Where,  in  the  course  of  1854  and 
1855,  were  you  living  —  in  Rugeley  .? " 

Smith.  "  In  1854  I  think  I  resided  partly  with  William 
Palmer,  and  sometimes  at  his  mother's." 

Attorney-General.  "  Did  you  sometimes  sleep  at  his 
mother's.? " 

Smith.    "Yes." 

Attorney-General.  "  When  you  did  that,  where  did  you 
sleep .? " 

Smith.    "  In  a  room." 

Attorney-General.  "  Did  you  sleep  in  his  mother's 
room  —  on  your  oath,  were  you  not  intimate  with  her  — 
you  know  well  enough  what  I  mean } " 

Smith.  "  I  had  no  other  intimacy,  Mr.  Attorney,  than 
a  proper  intimacy." 

Attorney-Geiieral.  "  How  often  did  you  sleep  at  her 
house,  having  an  establishment  of  your  own  at  Rugeley  .'* '' 

Smith.    "  Frequently.     Two  or  three  times  a  week." 

Attorney-General.  "  Are  you  a  single  or  a  married 
man  ?  " 

255 


THE    ART    OF    CROSS-EXAMINATION 

Smith.    "  A  single  man." 

Attor7tey-General.  "  How  long  did  that  practice  of 
sleeping  two  or  three  times  a  week  at  Mrs.  Palmer's 
continue  ?  " 

Smith.    "  For  several  years." 

Attorney-General.  "  Had  you  your  own  lodgings  at 
Rugeley  at  the  time  }  " 

Smith.   "  Yes,  all  the  time." 

Attorney-General.  "  How  far  were  your  lodgings  from 
Mrs.  Palmer's  house  }  " 

Smith.    "  I  should  say  nearly  quarter  of  a  mile." 

Attorney-General.  "  Explain  how  it  happened  that 
you,  having  your  own  place  of  abode  within  a  quarter  of 
a  mile,  slept  two  or  three  times  a  week  at  Mrs.  Palmer's." 

Smith.  "  Sometimes  her  son  Joseph  or  other  members 
of  her  family  were  on  a  visit  to  her,  and  I  went  to  see 
them." 

Attorney-General.  "  And  when  you  went  to  see  those 
members  of  her  family,  was  it  too  far  for  you  to  return  a 
quarter  of  a  mile  in  the  evening .? " 

Smith.  "  Why,  we  used  to  play  a  game  of  cards,  and 
have  a  glass  of  gin-and-water,  and  smoke  a  pipe  perhaps; 
and  then  they  said,  '  It  is  late  —  you  had  better  stop  all 
night ; '  and  I  did.  There  was  no  particular  reason  why 
I  did  not  go  home  that  I  know  of." 

Attorney-General.  "  Did  that  go  on  for  three  or  four 
years  r 

Smith.    "  Yes ;  and   I   sometimes   used  to  stop  there 

256 


CROSS-EXAMINATION    OF    JKRKMIAII    SMIIH 

when  there  was  nobody  there  at  all  —  when  they  were  all 
away  from  home,  the  mother  and  all." 

Aitor7iey-Gcneral.  "  And  you  have  slept  there  when 
the  sons  were  not  there  and  the  mother  was  ?  " 

Smilh.    "Yes." 

Attorney-General.   "  How  often  did  that  happen  .?  " 

Smith.  "Sometimes  for  two  or  three  nights  a  week, 
for  some  months  at  a  time,  and  then  perhaps  I  would  not 
go  near  the  house  for  a  month." 

Attorjiey-General.  "  What  did  you  stop  for  on  those 
nights  when  the  sons  were  not  there ;  there  was  no  one 
to  smoke  and  drink  with  then,  and  you  might  have  gone 
home,  might  you  not  ?  " 

Smith.    "  Yes  ;  but  I  did  not." 

A ttorjtey- General.  "  Do  you  mean  to  say,  on  your  oath, 
that  there  was  nothing  but  a  proper  intimacy  between 
you  and  Mrs.  Palmer  ?  " 

Smith.    "  I  do." 

Attorney-General  "  Now  I  will  turn  to  another  sub- 
ject. Were  you  called  upon  to  attest  another  proposal 
for  ^13,000  by  Walter  Palmer  in  the  Universal  Office.''" 

Smith.  "  I  cannot  say  ;  if  you  will  let  me  see  the  pro- 
posal, I  shall  know." 

Attorney-General.  "  I  ask  you,  sir,  as  an  attorney  and 
a  man  of  business,  whether  you  cannot  tell  me  whether 
you  were  applied  to  by  William  Palmer  to  attest  a  pro- 
posal for  an  assurance  for  ^13,000  on  the  life  of  Walter 
Palmer  ? " 

R  257 


THE    ART    OF    CROSS-EXAMINATION 

Smith.  "  I  say  that  I  do  not  recollect  it.  If  I  could 
see  any  document  on  the  subject,  I  daresay  I  should 
remember  it." 

Attorney-General,  "  Do  you  remember  getting  a  ^5 
note  for  attesting  an  assignment  by  Walter  Palmer  to  his 
brother  of  such  a  policy  t  " 

Smith.  "  Perhaps  I  might.  I  don't  recollect  posi- 
tively." 

A ttorney-G enteral  (handing  a  document  to  witness). 
"  Is  that  your  signature  ?  " 

Smith.    "  It  is  very  like  my  signature." 

Attorney-General.    "  Have  you  any  doubt  about  it?  " 

Smith  (after  considerable  hesitation).  "  I  have  some 
doubt." 

Attorney-General.  "  Read  the  document,  and  tell  me, 
on  your  oath,  whether  it  is  your  signature." 

Smith.    "  I  have  some  doubt  whether  it  is  mine." 

Attorney-General.  "  Read  the  document,  sir.  Was  it 
prepared  in  your  ofHce  ?  " 

Smith.    "  It  was  not." 

Attorney-Ge7ieral.  "  I  will  have  an  answer  from  you 
on  your  oath  one  way  or  another.  Isn't  that  your  hand- 
writing ?  " 

Smith.  "  I  believe  that  it  is  not  my  handwriting.  I 
think  that  it  is  a  very  clever  imitation  of  it." 

Attorney-General.    "  Will  you  swear  that  it  is  not.?  " 

Smith.  "  I  will.  I  think  that  it  is  a  very  good  imita- 
tion of  my  handwriting." 

258 


CROSS-EXAMINA'I  ION    OK    JERKMIMI    SMITH 

Baron  Alderson.  "  Did  you  ever  make  such  an  attes- 
tation ? " 

Smith.    "  I  don't  recollect,  my  Lord." 

Attor7tcy-General.  "  Look  at  the  other  signature  there, 
*  Walter  Palmer,'  —  is  that  his  signature  ?  " 

Smith.    "  I  believe  that  is  Walter  Palmer's." 

Attorney-General.  "  Look  at  the  attestation  and  the 
words  'signed,  sealed,  and  delivered';  are  they  in  Mr. 
Pratt's  handwriting  ?  " 

Smith.   "  They  are." 

Attorney-General.  "  Did  you  receive  that  from  Mr. 
Pratt  ? " 

Smith.  *'  Most  likely  I  did ;  but  I  can't  swear 
that  I  did.  It  might  have  been  sent  to  William 
Palmer." 

Attorney-General.  "  Did  you  receive  it  from  William 
Palmer  ? " 

Smith.    "  I  don't  know.     Very  likely  I  did." 

Attorney-General.  "  Did  William  Palmer  give  you  that 
document  ? " 

Smith.    "  I  have  no  doubt  he  did." 

Attorney-Geiieral.  "  If  that  be  the  document  he  gave 
you,  and  those  are  the  signatures  of  Walter  Palmer  and 
of  Pratt,  is  not  the  other  signature  yours } " 

Smith.   "  I'll  tell  you,  Mr.  Attorney  —  " 

Attorney-General.  "  Don't  '  Mr.  Attorney '  me,  sir ! 
Answer  my  question.     Isn't  that  your  handwriting  ?  " 

Smith.   "  I  believe  it  not  to  be." 

259 


THE   ART   OF    CROSS-EXAMINATION 

Attorney-General.    "  Will  you  swear  that  it  isn't?  " 

Smith.    "  I  believe  that  it  is  not." 

Attor7iey-General.  "  Did  you  apply  to  the  Midland 
Counties  Insurance  Office  in  October,  1855,  to  be  ap- 
pointed their  agent  at  Rugeley  ? " 

Smith.    "  I  think  I  did." 

Attorjiey-General.  "  Did  you  send  them  a  proposal  on 
the  life  of  Bates  for  ^10,000  —  you  yourself.?" 

Smith.    "  I  did." 

A ttorney-Gejteral.  "  Did  William  Palmer  apply  to  you 
to  send  that  proposal .?  " 

Smith.  "  Bates  and  Palmer  came  together  to  my  office 
with  a  prospectus,  and  asked  me  if  I  knew  whether  there 
was  any  agent  for  that  company  in  Rugeley.  I  told 
them  I  had  never  heard  of  one,  and  they  then  asked  me 
if  I  would  write  and  get  the  appointment,  because  Bates 
wanted  to  raise  some  money." 

Attorney-General.  "Did  you  send  to  the  Midland 
Office  and  get  appointed  as  their  agent  in  Rugeley, 
in  order  to  effect  that  ^10,000  insurance  on  Bates's 
life } " 

Smith.    "  I  did." 

Attorney-General.  "  Was  Bates  at  that  time  superin- 
tending William   Palmer's  stud  and  stables }  " 

Smith.    "He  was." 

Attor7tey-General.    "  At  a  salary  of  ^i  a  week }  " 

Smith.    "  I  can't  tell  his  salary." 

Attorney-General.  "  After  that  did  you  go  to  the  widow 

260 


CROSS-EXAMINATION    OF   JKREMIAH    SiMITH 

of  Walter  Palmer  to  get  her  to  give  up  her  claim  on  the 
policy  of  her  Jnisband  ?  " 

Smith.    "  I  did." 

Aiiorney-Gencral.    "  Where  was  she  at  that  time  ?  " 

Smith.    "  At  Liveipool." 

Attorney-Ge7ieral.   "  Did  you  receive  a  document  from 
Pratt  to  take  to  her  ?  " 

Smith.  "  William  Palmer  gave  me  one  which  had  been 
directed  to  him." 

Attorney-General.    "  Did  the  widow  refuse  ?  " 

Smith.  "  She  said  she  should  like  her  solicitor  to  see 
it ;  and  I  said,  '  By  all  means.' " 

Attorney-General.  "Of  course!  Didn't  she  refuse  to 
do  it  —  didn't  you  bring  it  back  ?  " 

Smith.    "  I  brought  it  back  as  I  had  no  instructions  to 

leave  it." 

Attorney-General.  "  Didn't  she  say  that  she  under- 
stood from  her  husband  that  the  insurance  was  for 
/ 10,000.?" 

Mr.  Serjeant  Shee  objected  to  this  question.  What 
passed  between  the  widow  and  witness  could  be  no  evi- 
dence against  the  prisoner. 

The  Attorney-General  said  that  the  question  was  in- 
tended to  affect  the  credit  of  the  witness,  and  with  that 
view  it  was  most  important. 

The  court  ruled  that  the  question  could  not  be  put. 

Attorney-General.  "  Do  you  know  that  Walter  Palmer 
obtained  nothing  for  making  that  assignment  ?  " 

261 


THE   ART   OF   CROSS-EXAMINATION 

Smith.  "  I  believe  that  he  ultimately  did  get  something 
for  it." 

Attoriiey-General.  "  Don't  you  know  that  what  he  got 
was  a  bill  for  ;!^200?  " 

Smiik.   "  Yes ;  and  he  had  a  house  furnished  for  him." 

Attorney-Ge7ieraL  "  Don't  you  know  that  he  got  a  bill 
for  ^200? " 

Smith.   "Yes." 

Attorney-General.  "  And  don't  you  know  that  that  bill 
was  never  paid }  " 

Smith.    "  No,  I  do  not." 

Attor7iey-General.  "  Now,  I'll  refresh  your  memory  a 
little  with  regard  to  those  proposals  [handing  witness  a 
document].  Look  at  that,  and  tell  me  whether  it  is  in 
your  handwriting." 

Smith.    "  It  is." 

Attorney-General.  "  Refreshing  your  memory  with 
that,  I  ask  you  were  you  not  applied  to  by  William 
Palmer  in  December,  1854,  to  attest  a  proposal  on  the 
life  of  his  brother,  Walter,  for  ^13,000  in  the  Solicitors 
and  General  Insurance  Office }  " 

Sm,ith.   "  I  might  have  been." 

Attorney-General.  "Were  you  or  were  you  not,  sir? 
Look  at  that  document,  and  say  have  you  any  doubt 
upon  the  subject  ?  " 

Smith.  "  I  do  not  like  to  speak  from  memory  with 
reference  to  such  matters." 

Attorney-General.   "  No ;  but  not  speaking  from  mem- 

262 


CROSS-EXAMINATION    OF   JEREMIAH    SMITH 

ory  in  an  abstract  sense,  but  having  your  memory  re- 
freshed by  a  perusal  of  that  document,  have  you  any 
doubt  that  you  were  appHed  to  ?  " 

Smith.  "  I  have  no  doubt  that  I  might  have  been 
appHed  to." 

Attorney-General.  "  Have  you  any  doubt  that  in  Janu- 
ary, 1855,  you  were  called  on  by  William  Palmer  to 
attest  another  proposal  for  ;;^  13,000  on  his  brother's 
life  in  another  office  ?  Look  at  that  document  and  tell 
me." 

Smith,  "  I  see  the  paper,  but  I  don't  know ;  I  might 
have  signed  it  in  blank." 

Attor7iey-General.  "  Do  you  usually  sign  attestations 
of  this  nature  in  blank }  " 

Smith.  "  I  have  some  doubt  whether  I  did  not  sign 
several  of  them  in  blank." 

Attorney-General.  "On  your  oath,  looking  at  that 
document,  don't  you  know  that  William  Palmer  applied 
to  you  to  attest  that  proposal  upon  his  brother's  life  for 
;^  1 3,000?" 

Smith.  "  He  did  apply  to  me  to  attest  proposals  in 
some  offices." 

Attorney-General.   "  Were  they  for  large  amounts }  " 

Smith.    "  One  was  for  ^13,000." 

Attorney-General.  "  Were  you  applied  to  to  attest  an- 
other for  the  like  sum  in  the  Universal  Office  ?  " 

Smith.    "  I  might  be." 

Attorney-General.   "  They  were  made  much  about  the 

26^ 


THE   ART    OF    CROSS-EXAMINATION 

same  time,  were  they  not?  You  did  not  wait  for  the 
answers  to  come  back  to  the  first  application  before  you 
made  the  second  ?  " 

Smith.  "  I  do  not  know  that  any  answers  were  re- 
turned at  all." 

Attorney-General.  "  Will  you  swear  that  you  were  not 
present  when  Walter  Palmer  executed  the  deed  assigning 
the  policy  upon  his  life  to  his  brother,  William  Palmer? 
Now,  be  careful,  Mr.  Smith,  for  depend  upon  it  you  shall 
hear  of  this  again  if  you  are  not." 

Smith.  "  I  will  not  swear  that  I  was,  I  think  I  was 
not.     I  am  not  quite  positive." 

(Very  few  of  the  answers  to  these  questions  of  the 
Attorney-General  were  given  without  considerable  hesi- 
tation, and  the  witness  appeared  to  labor  under  a  sense 
of  embarrassment  which  left  a  decidedly  unfavorable 
impression  upon  the  minds  of  the  audience.) 

Attorney-General.  "  Do  you  know  that  the  ^200  bill 
was  given  for  the  purpose  of  enabling  William  Palmer 
to  make  up  a  sum  of  ^500? " 

Smith.  "  I  believe  it  was  not ;  for  Cook  received  abso- 
lutely from  me  ^200.  If  I  am  not  mistaken,  he  took  it 
with  him  to  Shrewsbury  races  —  not  the  last  races." 

Attorney-Ge7teraL  "  In  whose  favor  was  the  bill 
drawn  ? " 

Sm.ith.  "  I  think  in  favor  of  William  Palmer.  I  don't 
know  what  became  of  it.  I  have  never  seen  it  since.  I 
cannot  state  with  certainty  who  saw  me  on  the  Monday ; 

264 


CROSS-EXAMINATION    OF   JKREMlAil    SMllil 

but  I  called  at  the  Talbot  Arms,  and  went  into  Cook's 
room.  One  of  the  servants  gave  me  a  candle.  As  well 
as  I  can  remember,  the  servant  who  did  so  was  either 
Bond,  Mills,  or  Lavinia  Barnes,  I  can't  say  which." 


265 


CHAPTER   XV 

THE   CROSS-EXAMINATION   OF   RUSSELL   SAGE   BY   MR. 
JOSEPH   H.   CHOATE   IN   THE   LAIDLAW-SAGE   CASE 


CHAPTER   XV 

THE    CROSS-EXAMINATION    OF    RUSSELL    SAGE    BY    MR.  JOSKI'H 
H.    CHOATE    IN    THE    LAIDLAW-SAGE    CASE 

One  of  the  most  recent  cross-examinations  to  be  made 
the  subject  of  appeal  to  the  Supreme  Court  General 
Term  and  the  New  York  Court  of  Appeals  was  the 
cross-examination  of  Russell  Sage  by  Mr.  Joseph  H. 
Choate,  in  the  famous  suit  brought  against  the  former 
by  William  R.  Laidlaw.  Sage  was  defended  by  the  late 
Edwin  C.  James,  and  Mr.  Choate  appeared  for  the 
plaintiff,   Mr.  Laidlaw. 

On  the  fourth  day  of  December,  1891,  a  stranger  by 
the  name  of  Norcross  came  to  Russell  Sage's  New 
York  ofHce  and  sent  a  message  to  him  that  he  wanted 
to  see  him  on  important  business,  and  that  he  had  a 
letter  of  introduction  from  Mr.  John  Rockefeller.  Mr. 
Sage  left  his  private  ofifice,  and  going  up  to  Norcross, 
was  handed  an  open  letter  which  read,  "  This  carpet-bag 
I  hold  in  my  hand  contains  ten  pounds  of  dynamite,  and 
if  I  drop  this  bag  on  the  floor  it  will  destroy  this  building 
in  ruins  and  kill  every  human  being  in  it.  I  demand 
twelve  hundred  thousand  dollars,  or  I  will  drop  it.  Will 
you  give  it  ?     Yes  or  no  ?  " 

269 


THE    ART   OF    CROSS-EXAMINATION 

Mr.  Sage  read  the  letter,  handed  it  back  to  Norcross, 
and  suggested  that  he  had  a  gentleman  waiting  for  him 
in  his  private  office,  and  could  be  through  his  business 
in  a  couple  of  minutes  when  he  would  give  the  matter 
his  attention, 

Norcross  responded :  "  Then  you  decline  my  proposi- 
tion ?  Will  you  give  it  to  me  ?  Yes  or  no  ? '  Sage 
explained  again  why  he  would  have  to  postpone  giving 
it  to  him  for  two  or  three  minutes  to  get  rid  of  some  one 
in  his  private  office,  and  just  at  this  juncture  Mr,  Laid- 
law  entered  the  office,  saw  Norcross  and  Sage  without 
hearing  the  conversation,  and  waited  in  the  anteroom 
until  Sage  should  be  disengaged.  As  he  waited.  Sage 
edged  toward  him  and  partly  seating  himself  upon  the 
table  near  Mr.  Laidlaw,  and  without  addressing  him, 
took  him  by  the  left  hand  as  if  to  shake  hands  with  him, 
but  with  both  his  own  hands,  and  drew  Mr.  Laidlaw 
almost  imperceptibly  around  between  him  and  Norcross. 
As  he  did  so,  he  said  to  Norcross,  "  If  you  cannot  trust 
me,  how  can  you  expect  me  to  trust  you  ? " 

With  that  there  was  a  terrible  explosion.  Norcross 
himself  was  blown  to  pieces  and  instantly  killed,  Mr. 
Laidlaw  found  himself  on  the  floor  on  top  of  Russell 
Sage.  He  was  seriously  injured,  and  later  brought  suit 
against  Mr.  Sage  for  damages  upon  the  ground  that  he 
had  purposely  made  a  shield  of  his  body  from  the  ex- 
pected explosion.  Mr.  Sage  denied  that  he  had  made 
a  shield  of  Laidlaw  or  that  he  had  taken  him  by  the 

270 


THE    CROSS-EXAMINATION    OF    RUSSELL   SAGE 

hand  or  altered  his  own  position  so  as  to  bring  Laid- 
law  between  him  and  the  explosion. 

The  case  was  tried  four  times.  It  was  dismissed  by 
Mr.  Justice  Andrews,  and  upon  appeal  the  judgment 
was  reversed.  On  the  second  trial  before  Mr.  Justice 
Patterson  the  jury  rendered  a  verdict  of  #25,000  in  favor 
of  Mr.  Laidlaw.  On  appeal  this  judgment  in  turn  was 
reversed.  On  a  third  trial,  also  before  Mr.  Justice 
Patterson,  the  jury  disagreed ;  and  on  the  fourth  trial 
before  Mr.  Justice  Ingraham  the  jury  rendered  a  ver- 
dict in  favor  of  Mr.  Laidlaw  of  #40,000,  which  judg- 
ment was  sustained  by  the  General  Term  of  the 
Supreme  Court,  but  subsequently  reversed  by  the 
Court  of  Appeals. 

Exception  on  this  appeal  was  taken  especially  to  the 
method  used  in  the  cross-examination  of  Mr.  Sage  by 
Mr.  Choate.  Thus  the  cross-examination  is  interesting, 
as  an  instance  of  what  the  New  York  Court  of  Appeals 
has  decided  to  be  an  abuse  of  cross-examination  into 
which,  through  their  zeal,  even  eminent  counsel  are 
sometimes  led,  and  to  which  I  have  referred  in  a  pre- 
vious chapter.  It  also  shows  to  what  lengths  Mr. 
Choate  was  permitted  to  go  upon  the  pretext  of  test- 
ing the  witness's  memory. 

It  was  claimed  by  Mr.  Sage's  counsel  upon  the  appeal 
that  "  the  riorht  of  cross-examination  was  abused  in  this 
case  to  such  an  extent  as  to  require  the  reversal  of  this 
monstrous  judgment,  which  is  plainly  the  precipitation 

271 


THE    ART    OF    CROSS-EXAMINATION 

and  product  of  that  abuse."  And  the  Court  of  Appeals 
unanimously  took  this  view  of  the  matter. 

The  portions  of  the  cross-examination  that  were  espe- 
cially excepted  to  were  the  rejected  jurors'  conversation 
with  Mr.  Sage ;  the  defendant's  lack  of  sympathy  for  the 
plaintiff;  the  article  in  the  New  York  World;  the  de- 
fendant's omission  to  give  warning  of  the  impending 
explosion,  and  the  defendant's  wealth  and  the  extent  and 
character  of  his  business. 

Mr.  Choate.  "  I  hope  you  are  very  well  this  morning, 
Mr.  Sage  ? " 

Mr.  Sage.    "  Yes,  sir." 

Mr.  Choate.  "Do  you  remember  swearing  to  the 
answer  in  this  case  ?  " 

Mr.  Sage.    "  I  didn't  hear  you,  sir." 

Mr.  Choate.    "  Which  is  your  best  ear  ?  " 

Mr.  Sage.    "  This." 

Mr.  Choate.  "  Do  you  remember  swearing  to  the 
answer  in  this  case  }  " 

Mr.  Sage.    "  I  do." 

Mr.  Choate.    "  Who  prepared  it  for  you  ?  " 

Mr.  Sage.    "  It  was  prepared  by  my  counsel." 

Mr.  Choate.  "  Counsel  in  whom  you  have  every  con- 
fidence .f*  " 

Mr.  Sage.   "  Yes,  sir." 

Mr.  Choate.  "  Prepared  after  you  had  given  a  careful 
statement  of  your  case  to  them  ?  " 

Mr.  Sage.    "  Such  statement  as  I  thought  necessary." 

272 


THE    CROSS-EXAMINATION    OK    RUSSELI.   SAGE 

Mr.  Choate.  "  Did  you  mean  to  conceal  anything  from 
them  ?  " 

Mr.  Sage.    "  No,  sir." 

Mr.  Choate.  "  Did  you  read  the  complaint  over  with 
your  counsel  before  you  swore  to  the  answer  ? " 

Mr.  Sage.    "  I  presume  I  did." 

Mr.Ckoatc.  "Just  imagine  you  were  down  at  the 
Stock  Exchange  now,  and  speak  loud  enough  so  that 
gentleman  can  hear  you." 

Mr.  Sage.    "  I  will  endeavor  to." 

Mr.  Choate.  "  Did  you  read  your  answer  before  you 
swore  to  it .''  " 

Mr.  Sap-e.    "  I  did,  sir." 

o 

Mr.  Choate.    "  It  was  true,  then,  was  it  not  ? " 

Mr.  Sage.   "  I  believed  it  to  be  so." 

Mr.  Choate.  "  I  call  your  attention  to  a  statement 
made  in  the  answer."  (Mr.  Choate  here  read  from  Mr. 
Sao-e's  answer  in  which  he  swore  that  he  was  in  conver- 
sation  with  Mr.  Norcross  while  Mr.  Laidlaw  was  in  the 
office,  Mr.  Sage  having  testified  differently  the  day  be- 
fore.)    "  Was  that  true  ?  " 

Mr.  Sacrc.    "  I  don't  know.     I  didn't  catch  it." 

Mr.  Choate.  "  I  didn't  want  you  to  catch  it.  I  wanted 
3^ou  to  answer  it.  You  observe,  do  you  not,  that  the 
answer  says  that  the  plaintiff  Laidlaw  was  in  your  ofHce 
while  you  were  conversing  with  the  stranger  ?  " 

Mr.  Sao-e.  "  I  observe  that,  but  I  want  to  state  the 
fact  as  I  did  yesterday." 

s  273 


THE    ART    OF    CROSS-EXAMINATION 

Mr.  Choate.  "  Answer  my  question.  Did  you  observe 
it?" 

Mr.  Sage.    "  I  did." 

Mr.  Choate.  "  Put  down  your  fist  and  answer  my 
question." 

Mr.  Sage.    "  I  answered  it." 

Mr.  Choate.  "  I  think  we  will  get  along  as  soon  as 
you  answer  my  questions  instead  of  making  speeches. 
Did  you  observe  that  your  answer  states  that  before 
Laidlaw  was  in  the  office,  and  while  you  were  convers- 
ing with  the  stranger,  the  stranger  had  already  handed 
you  a  note  demanding  money  ?  " 

Mr.  Sage.    "  He  had  done  no  such  thing." 

Mr.  Choate.  "  Do  you  observe  that  your  answer  states 
that?" 

Mr.  Sage.  "  Your  reading  states  it  so,  but  the  fact  is 
as  I  have  stated  it." 

Mr.  Choate.  "  Was  not  your  answer  true  as  you  swore 
to  it?" 

Mr.  Sage.   "  No,  sir ;  not  on  your  interpretation." 

Mr.  Choate.  "  How  came  you  to  swear  to  it,  if  it  is 
not  true  ? " 

Mr.  Sage.  "  I  suppose  that  was  prepared  afterward  by 
counsel,  as  you  prepare  papers." 

Mr.  Choate.  "  I  never  prepare  papers.  What  are  you 
talking  about  ?  " 

Mr.  Sage.  "  You  have  the  reputation  of  preparing 
papers." 

274 


THE    CROSS-KXAMINA  riON    OF    RUSSKLL    SAGE 

Mr.  Choale.  "  Do  you  mean  that  your  lawyers  dis- 
torted the  facts  from  what  you  stated  ?  " 

Mr.  Sage.  "  1  suppose  they  prepared  the  papers  in 
their  usual  form." 

Mr.  Choate.  "  In  the  usual  form  ?  Was  there  ever 
any  usual  form  for  a  case  like  this  ? " 

Mr.  Sage.    "  Yes,  sir." 

Mr.  Choate.  *'  Did  you  ever  know  of  such  a  case 
before  ?  " 

Mr.  Sage.    "  No,  sir." 

(Mr.  Choate  then  pursued  this  inquiry,  in  various 
forms,  for  at  least  one  hundred  questions  more,  and  get- 
ting no  satisfactory  answer,  he  continued,  "  We  will  drop 
the  subject  and  go  to  something  else.") 

Mr.  Choate.  "  Since  Mr.  Laidlaw  made  this  claim 
against  you,  you  have  been  very  hostile  against  him, 
have  you  not  ?  " 

Mr.  Sage.    "  No,  sir,  not  hostile." 

Mr.  Choate.  "  Have  you  not  called  him  all  sorts  of 
bad  names  ? " 

Mr.  Sao-e.   "  I  said  he  did  not  tell  the  truth." 

o 

Mr.  Choate.  "  Have  you  denounced  him  as  a  black- 
mailer ?     When  did  you  do  that  ?  " 

Mr.  Sage.  "  I  might  have  said  that  a  man  who  would 
persevere  in  making  a  statement  that  there  was  not  a 
word  of  truth  in,  and  demanding  a  sum  of  money — I 
don't  know  what  you  call  it.     Call  it  what  you  please." 

Mr.  Choate.   "  Did  you   not  say  that  you  would    see 

275 


THE    ART    OF   CROSS-EXAMINATION 

Laidlaw  a  tramp  before  he  would  get  through  with  this 
case  ? " 

Mr.  Sage.  "  I  have  no  recollection  of  any  such 
thing." 

Mr.  Choate.    "  Will  you  swear  you  didn't  ?  " 

Mr.  Sage.    "  I  won't  swear.     I  might." 

Mr.  Choate.    "  What  ?  " 

Mr.  Sage.    "  I  won't  testify  to  what  I  have  said." 

Mr.  Choate.  "  I  want  you  to  say  whether  you  will  swear 
that  you  said  that  you  would  see  Laidlaw  a  tramp  be- 
fore he  got  through." 

Mr.  Sage.    "  I  don't  know." 

Mr.  Choate.  "  Do  you  not  know  that  when  the  last 
juror  was  excused  from  the  jury-box,  or  discharged,  he 
stated  in  the  presence  of  the  court  and  the  other  jury- 
men that  after  the  verdict  rendered  by  the  former  jury 
in  this  case  against  you,  Mrs.  Sage  went  to  him  at 
Tiffany's  and  stated  that  the  verdict  was  a  great  outrage, 
and  that  Mr.  Sage  would  never  pay  a  cent  ? "  (This 
question  was  bitterly  objected  to  by  Mr.  James,  but 
allowed  by  the  court.) 

Mr.  Sage.  "  I  want  to  state  right  here,  if  you  will 
permit  —  " 

Mr.  Choate.  "  The  first  business  is  to  answer  this 
question." 

Mr.  Sage.  "  I  don't  know  it.  I  know  that  Mrs.  Sage 
denied  ever  having  said  anything  of  the  kind." 

Mr.  Choate.    "  You  think  the  juror  told  a  falsehood  ? " 

276 


THE    CROSS-EXAMINATION    OF    RUSSELL    SAGE 

Mr.  Sage.  "  Mrs.  Sage  has  no  recollection  of  having 
said  that." 

Mr.  Choate.  "  Did  you  say  to  anybody  that  it  was  an 
outrage } " 

Mr.  Sage.  "  I  have  no  recollection.  I  think  it  is  the 
greatest  outrage  that  was  ever  attempted  by  a  respectable 
lawyer." 

Mr.  Choate.  "  Did  you  not  say  that  you  would  spend 
$100,000  dollars  in  defending  this  case  rather  than  pay  a 
cent  to  Laidlaw  ?  " 

Mr.  Sage.  "  I  have  great  confidence  in  the  courts  of 
this  state  and  the  United  States,  and  I  am  fighting  for 
other  people  besides  myself,  and  I  propose  to  have  this 
case  settled  by  the  highest  courts." 

Mr.  Choate.    "  No  matter  what  this  jury  says  ?  " 

Mr.  Sage.  "  I  have  great  respect  for  them  that  they 
will  decide  the  case  rightly.  I  want  to  know  if  a  man 
can  come  into  my  office,  and  because  a  tramp  drops  in 
there  and  an  accident  happens,  and  an  injury  done,  I 
am  responsible  for  that  ?  " 

Mr.  Choate.  "  These  harangues  of  yours  take  a  great 
deal  of  time.  I  ask  you  whether  or  not  you  knew  that 
Laidlaw  at  the  time  of  this  accident  had  been  very  badly 
hurt.?" 

Mr.  Sage.   "  Yes,  sir  ;   I  knew  he  had  been." 

Mr.  Choate.  "  Do  not  you  know  he  was  laid  up  in  the 
hospital  helpless .? " 

Mr.  Sage.    "  I  understand  he  was.     Yes,  sir." 

277 


THE   ART   OF    CROSS-EXAMINATION 

Mr.  Choate.  "  Did  it  ever  occur  to  you  to  see  what  you 
could  do  for  him  ?  " 

Mr.  Sage.  "Yes,  sir.  I  sent  my  brother-in-law  to  inquire 
after  him  twice." 

Mr.  CJioate.    "  Did  you  visit  him  yourself  ?  " 

Mr.  Sage.    "  I  did  not." 

Mr.  Choate.  "  Did  you  do  anything  to  relieve  his 
sufferings  ?  " 

Mr.  Sage.  "  I  was  not  called  upon  to  do  anything  of 
the  kind." 

Mr.  Choate.  "  I  did  not  ask  you  whether  you  were 
called  upon.     I  asked  whether  you  did  }  " 

Mr.  Sage.    "  I  did  not." 

Mr.  Choate.  "  Did  not  you  refrain  from  going  to  see 
him  because  you  were  afraid  if  you  did  he  would  make  a 
claim  upon  you  }  " 

Mr.  Sage.    "  No,  sir." 

Mr.  Choate.  "  Did  you  care  whether  he  was  going  to 
get  cured  or  not }  " 

Mr.  Sage.   "  It  is  an  outrage  to  ask  such  a  question." 

Mr.  Choate.  "  Did  you  have  a  grandnephew,  Chapin, 
at  this  time }  " 

Mr.  Sage.    "  Yes." 

Mr.  Choate.  "  Was  he  assistant  editor  of  the  World 
at  that  time  .<*  " 

Mr.  Sage.   "  Yes." 

Mr.  Choate.  "  Shortly  after  the  explosion,  did  he  come 
to  see  you  and  have  a  chat  with  you  1 " 

278 


THIC    CROSS-EXAMINA'I'ION    OF    RUSSKLJ.    SAGE 

Mr.  Sao-c.    "  Yes." 

Mr.  Choalc.  "Did  you  afterward  read  an  article 
published  in  the  New  York  World,  headed,  '  A  Chat 
with     Russell    Sage,'    and    giving    an     interview    with 

Mr.  Sage.    "  Yes." 

Mr.  Choate.  "When  you  read  in  that  article:  'He 
looks  as  vigorous  as  at  any  time  before  the  time  of  the 
assassination.  His  face  bears  almost  no  marks  of  the 
glass  that  had  got  into  it  after  the  explosion.  It  was 
clean  shaven ;  in  fact,  Mr.  Sage  had  arisen  yesterday 
morning  and  shaved  himself,'  did  that  accord  with  your 
recollection  at  the  time  you  read  it }  " 

Mr.  Sage.  "  No,  sir ;  it  did  not.  I  have  stated  it  was 
a  gross  exaggeration." 

Mr.  Choate.  "  When  the  article  continued,  '  The  only 
thing  that  impressed  one  was  that  there  was  a  face  of  an 
old  man,  hearty  and  robust,  tenacious  of  life  and  good 
for  many  years.'  Did  that  accord  with  your  recollection 
at  the  time .?  " 

Mr.  Sage.  "  No,  sir ;  it  was  an  exaggeration.  I  was 
very  badly  scarred  all  over  my  face." 

Mr.  Choate.  "  When  you  read  in  that  article :  '  It  was 
more  surprising  though,  when  Mr.  Sage  arose,  and  help- 
ing himself  up  at  full  length,  exhibited  all  his  accustomed 
power  of  personality.  He  was  like  a  warrior  after  battle, 
a  warrior  who  has  come  from  the  thick  of  the  fight,  cov- 
ered with  the  dust  of  conflict,  yet  without  a  hurt  to  body 

279 


THE   ART    OF   CROSS-EXAMINATION 

or  limb.'  Did  that  accord  when  you  read  it  with  your 
then  present  recollection  ?  " 

Mr.  Sage.  "  No,  sir,  it  did  not.  This  is  the  third  time 
you  have  read  those  articles  to  the  jury  in  this  case  ;  it 
is  like  the  Fourth  of  July  oration  or  the  Declaration 
of  Independence." 

(Mr.  Choate  continued  and  was  allowed  to  read  from 
this  newspaper  article,  although  his  questions  were  con- 
stantly and  urgently  objected  to  on  the  part  of  the  de- 
fence, and  although  Mr.  Sage  said  that  he  did  not  read 
half  the  article  "  because  it  was  an  exaggerated  state- 
ment from  beginning  to  end,  as  most  paper  interviews 
are."  Mr.  Choate  here  went  into  an  exhaustive  examina- 
tion as  to  the  details  of  the  accident,  comparing  the 
witness's  statements  at  previous  trials  with  the  statements 
at  this  trial,  and  then  continued :  — 

Mr.  Choate.  "  Everything  you  did  after  you  once  ap- 
preciated the  danger  you  were  in,  having  read  the  threat 
contained  in  the  letter  the  stranger  handed  you,  was  to 
gain  time,  was  it  not }  " 

Mr.  Sage.    "  Yes,  sir." 

Mr.  Choate.  "  You  knew  at  that  time,  did  you  not, 
that  Laidlaw  and  Norcross  were  in  the  room  }  Why  did 
you  not  tell  them  to  step  into  your  private  room .? " 

Mr.  Sage.  "  I  will  tell  you  very  frankly  it  would  have 
been  almost  certain  death  to  six  or  seven  men.  There 
were  three  other  men  in  that  room  with  only  board  par- 
titions between.     It  would  have  infuriated  the  stranger, 

280 


THE    CROSS-EXAMINATION    OF    RUSSKI.L    SAGK 

and  would  have  made  him  disregard  me  and  drop  the 
bag." 

Mr.  Choatc.  "  Did  you  think  of  the  danger  that  Laid- 
law  and  Norcross  were  in  ?  " 

Mr.  Sage.  "  No  more  than  the  other  clerks.  We  were 
all  alike." 

Mr.  Choate.  "  And  the  reason  you  did  not  tell  them 
to  go  into  the  other  room  was  that  they  would  even  then 
not  be  out  of  danger  ?  " 

Mr.  Sage.  "  I  thought  it  would  displease  Norcross, 
and  show  that  I  was  trying  to  do  something  to  head  him 
off." 

Mr.  Choate.    "  And  he  would  allow  the  bag  to  drop?  " 

Mr.  Sage.   "  Yes,  sir." 

Mr.  CJwate.    "  And  kill  you  ?  " 

Mr.  Sage.    "  Kill  me  and  kill  the  whole  of  us." 

Mr.  Choate.    "  What  is  your  business  ?  " 

Mr.  Sage.    "  My  business  is  banker  and  broker." 

Mr.  Choate.    "  Why  do  you  call  yourself  a  banker  ?  " 

Mr.  Sage.  "  Because  I  buy  stock  and  discount  paper 
and  make  loans." 

Mr.  Choate.  "  You  are  a  money  lender,  are  you 
not  ? " 

Mr.  Sage.    "  Sometimes  I  have  money  to  loan." 

Mr.  Choate.    "  At  various  rates  of  interest  1 " 

Mr.  Sao-e.    "  Sometimes." 

Mr.  Choate.    "  Varying  from  six  to  sixty  per  cent  ?  " 

Mr.  Sage.    "  Oh,  no." 

281 


THE   ART   OF    CROSS-EXAMINATION 

Mr.  Choate.  "  What  is  the  other  part  of  your  busi- 
ness ? " 

Mr.  Sage.   "  My  business  is  operating  railroads." 

Mr.  Choate.    "  How  many  railroads  do  you  operate? " 

These  questions  were  strenuously  objected  to,  where- 
upon Mr.  Choate  said  to  the  court,  "  I  think  I  can  show 
that  this  man  has  so  many  things  in  his  head,  that  he  is 
so  full  of  affairs,  that  he  is  not  a  competent  witness  at 
any  time  to  any  transaction." 

Mr.  Sage.    "  I  am  operating  two." 

Mr.  Choate.  "  Are  they  large  railroads  or  horse  rail- 
roads ? " 

Mr.  Sage.    "  Well,  one  of  them  is  a  large  one." 

Mr.  Choate.  "You  help  run  several  banks,  do  you 
not?" 

Mr.  Sage.  "  I  am  not  running  any  banks,  only  a 
director." 

Mr.  Choate.   "  Are  you  a  director  in  two  banks  ?  " 

Mr.  Sage.   "  Yes,  sir." 

Mr.  Choate.    "  And  trust  companies  ?  " 

Mr.  Sage.    "  Yes,  sir." 

Mr.  Choate.    "  In  the  Manhattan  Elevated  R.  R.?" 

Mr.  Sage.    "  Yes,  sir." 

Mr.  Choate.    "  In  the  Western  Union  ?  " 

Mr.  Sage.    "  Yes,  sir." 

Mr.  Choate.   "  In  the  Missouri  Pacific?" 

Mr.  Sage.   "  Yes,  sir." 

Mr.  Choate.   "  In  the  Union  Pacific?  " 

282 


THE    CROSS-EXAMINATION    OK    RUSSELL    SAGE 

Mr.  Sa^e.   *'  Yes,  sir." 

Mr.  Choate.  "  This  stock  ticker  that  stood  by  the 
desk  in  the  adjoining  room,  did  you  keep  run  of  it  your- 
self ?  " 

Mr.  Sage.    "Yes,  sir." 

Mr.  Choate.  "  You  take  care  of  your  own  estate  be- 
sides, do  you  not  ?  " 

Mr.  Sage.   "  Yes,  sir." 

Mr.  Choate.    "  That  took  a  good  deal  of  time  1 " 

Mr.  Sazc    "  It  took  some  time." 

Mr.  Choate.    "  How  much  time  did  that  occupy  ?  " 

Mr.  Sage.  "  I  have  my  assistants,  my  clerks,  the  same 
as  you  have  in  your  ofifice." 

Mr.  Choate.  "  You  loan  money,  you  manage  these 
railroads,  banks,  trust  companies,  and  the  other  affairs 
that  you  have  mentioned.  Did  you  not  have  dealings  in 
stocks  ? " 

Mr.  Sage.  "  Oh,  I  buy  and  sell  securities  occasion- 
ally." 

Mr.  Choate.  "  Do  you  not  deal  in  puts  and  calls  and 
straddles .?  " 

Mr.  Sage.   "  I  have  in  years  gone  by." 

Mr.  Choate.  "  These  affairs  take  your  whole  time,  do 
they  not.?" 

Mr.  Sage.  "  No,  sir ;  I  have  leisure.  I  do  not  devote 
all  my  time  to  business." 

Mr.  Choate.    "  I  think  that  is  all." 


283 


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